What Emily Yoffe Left Out of Her Polemic on The Hunting Ground 

What Emily Yoffe Left Out of Her Polemic on The Hunting Ground 

In June, Slate columnist Emily Yoffe published a bombshell: an article titled “How The Hunting Ground Blurs the Truth,” in which she claimed that the campus rape documentary, which premiered earlier this year, had presented a misleading picture of one of its central stories. Yoffe wrote that the case perfectly illustrated the biases at work in the film; as she put it, “how deeply the filmmakers’ politics colored their presentation of the facts—and how deeply flawed their influential film is as a result.”

The story is that of a former law student named Kamilah Willingham, who alleges that she and a friend, who Yoffe calls KF, were sexually assaulted while they were incapacitated one night in January 2011. The alleged assailant was a fellow law student named Brandon Winston, formerly a close friend of Willingham’s.

Willingham’s credibility, Yoffe wrote, is called “seriously into question” by the facts of the case. She called the alleged assault a typically “spontaneous, drunken encounter,” as well as “ambiguous sexual encounter among young adults that almost destroyed the life of the accused, a young black man with no previous record of criminal behavior.” (Willingham and Winston are both black. KF is white.)

In a criminal trial earlier this year, a grand jury declined to indict Winston on any charges against Willingham. The trial jury convicted him of a lesser included offense, a non-sexual misdemeanor assault against KF, for which he was sentenced only to a brief probation period.

Winston has since returned to Harvard Law after a four-year absence; in the meantime, Willingham graduated. On November 11, a group of 19 Harvard Law professors issued an open letter in support of Winston, saying he’d been vindicated by both Harvard and the criminal justice system, but was being unfairly attacked by The Hunting Ground, which they called “a purported documentary” that paints “a seriously false picture both of the general sexual assault phenomenon at universities” and of Winston himself, who is not referred to by name in the film. (Yoffe, who recently announced she will leave Slate for the Atlantic, was the first person to identify him in connection with the film.)

“We believe that Brandon Winston was subjected to a long, harmful ordeal for no good reason,” the professors wrote. They cite Yoffe’s work as an “investigative journalist’s in-depth story demonstrating the biased, one-sided nature of the film.”

Yoffe first covered The Hunting Ground in an unimpressed February review, then revisited Winston’s case four months later. She was motivated, she wrote, by a juror who got in touch after Winston’s criminal trial ended, and who expressed dismay that he’d been forced to stand trial at all “for what she saw as a drunken hookup.”

Hunting Ground filmmakers Kirby Dick refused to speak to Yoffe for her stories (His producer, Amy Ziering, says she was not contacted by Yoffe). The two presented Jezebel recently with a list of what they said were errors and inaccuracies in her articles, including misstatements about sexual assault statistics, an incorrect timeline on when Willingham went to the police reported the incident to campus authorities, and omissions in her descriptions of Willingham and Winston’s testimony, particularly during the on-campus disciplinary proceedings at Harvard Law in 2011. In evaluating their claims, we interviewed Kamilah Willingham and KF, as well as an attorney for Brandon Winston. (The attorney, Norman Zalkind, declined to make his client available for an interview. Yoffe did not respond to three emails seeking comment.)

We were also able to review both court testimony and a piece of evidence mentioned briefly but never quoted by Yoffe: a vivid, detailed, 37-page fact-finding report produced in 2011 by an attorney named Sally Adams, an independent investigator hired by the Administrative Board, Harvard Law’s disciplinary body.

Both the fact-finder’s report and court testimony shows that the night was not “ambiguous” to KF and Willingham, who remain convinced to this day that something terrible happened to them. Nor is it ambiguous to Winston, who’s always insisted that he did nothing wrong, even as some of the details of his story shifted between his first conversations with Willingham after that night, the campus proceedings and the criminal trial.

Where Yoffe evidently sees a sodden night gone awry, it’s just as easy to see a different story: of two women who tried their best to follow the correct steps after they believed they had been assaulted. And the differences between the campus proceedings and the criminal trial raise the same troubling questions many people have been asking lately, about how campus justice works, and whether it’s truly fair to either the accused or the alleged victim.

The Adams report found aspects of Winston’s story not credible, writing that he “could not reasonably have believed” his sexual conduct towards KF “was welcome.” She concluded he was responsible for violating KF, engaging in conduct that was “abusive and unreasonably invasive.” Adams did not find Winston subjected Willingham to sexual conduct that was “abusive or unreasonably recurring,” but wrote that Willingham “credibly explained that she experienced trauma both from what she believed BW had done to her, and from his actions towards [KF].”

Where Yoffe evidently sees a sodden night gone awry, it’s just as easy to see a story of two women who tried their best to follow the correct steps after they believed they had been assaulted.

In a “faculty review” of the case the following spring, a process which Willingham and KF weren’t allowed to participate in, the report’s findings were overruled. Winston returned to school, only to be criminally indicted three weeks later for what he’d allegedly done to KF.

The facts of the case, then, don’t necessarily, as Yoffe implies, show a woman with credibility problems trying inexplicably to crucify a former friend. They show shifting standards of evidence and shifting ideas about what level of sexual conduct is “abusive.”

The Hunting Ground’s roughly 15 to 20 minutes spent on Willingham’s case, interspersed with the other stories featured, is insufficient to cover all the facts. The same is true for Yoffe, who fails to mention, for example, that Harvard Law was cited by the Department of Education as “unduly prejudiced in favor of the accused” for the review process used in cases like Willingham’s.

Today, Willingham and KF—as well as Winston, in his lawyer’s telling—have all ended up in pretty much the same place: feeling shaken and bruised by the media attention, the criminal justice process, and their interactions with Harvard Law.

“He’s so frightened of everything after going through this experience,” says Zalkind, Winston’s lawyer. “But he never felt he did anything wrong.”

“I feel crazy sometimes, reading this stuff,” Willingham said in a recent phone call, referring to Yoffe’s stories. “We wouldn’t have gone to the police or pushed so hard if it didn’t seem obvious. If we didn’t have what looked like written concessions from him.”

“He was a young black law student with a bright future?” she adds, parroting Yoffe. “Well, so was I.”

Willingham and Winston had been friends for roughly two years before the night of the alleged assault. In Yoffe’s telling, they’d shared one romantic night at the beginning of their acquaintance, in 2009. “One time at Willingham’s apartment they made out, but decided to be just friends,” she writes.

That is Winston’s account, from his criminal trial this year: that the two started kissing in her living room, where her roommate kept interrupting. They repaired to the bedroom, but the roommate interrupted there too, so he left.

Willingham told a different story, both in her testimony at trial, which Yoffe would have seen, and to Adams, the Harvard Law fact-finder. (Yoffe, as we noted, mentions the Harvard report but does not quote from it.)

Willingham told the investigator that Winston straddled her as she sat on the couch, and kissed her, even after she told him to stop. Explaining the incident, she told Jezebel that her roommate tried to intervene as Winston got “weirdly aggressive” and giggled as she said no. Her tights were ripped in the “playful scuffle,” and when she suggested he leave, she says he headed not for the door but for her bed, leaving only after she declined to get in.

Everyone involved agrees that there was no further sexual interaction between the two until 2011. In the meantime, Willingham says she forgot the 2009 incident almost entirely, even telling Adams she found it “hilarious” at the time, because Winston was so “tipsy.”

Willingham and Winston’s stories diverge in a similar way on the night of January 14, 2011. In the film, in the Harvard interviews, and in Winston’s criminal trial, Willingham says she woke up in her bedroom to find Winston on top of her with his hands in her underwear, trying to put his fingers in her vagina. KF, she says, was topless beside her, wearing only leggings. In his trial for allegedly assaulting KF, Winston admits to removing her top, but calls the night a consensual—albeit very drunken—makeout session.

By all accounts, the night begins when Willingham and KF were joined at Willingham’s apartment by Winston and another friend around 7 p.m. Everyone had a few drinks there and then headed out to a bar called the Middlesex Lounge. Testimony in court shows both Winston and Willingham snorted a line of cocaine each while still at her apartment. (Willingham declined to discuss the drug use with Adams, except to stress that KF didn’t use any drugs, and that cocaine, a stimulant, was unlikely to cloud her memory of events that took place hours later.)

A witness from the bar told Adams that KF and Winston started dancing in a “sexual, suggestive way,” with Winston hoisting her up and gripping her leg and butt. Winston corroborated this account. KF testified in court, told Adams and repeated to Jezebel that she remembers none of it. She told Adams that she only remembers Winston leaving their group and coming back with a beer before she blacked out. “It was like a coma,” she told Jezebel. “I had never blacked out before. Not like this.”

Around two, the group left the bar. While waiting for a cab, Willingham testified, KF “fell flat on the ground” repeatedly. Winston helped her hoist KF up. By the time they all made it into a cab, Willingham was feeling ill, too.

Back at Willingham’s apartment, their stories begin to significantly diverge.

Winston told Adams that the women buzzed him in, and he was fairly certain that KF wanted to “engage in intimacy,” she writes, “because they were ‘hooking up’ before that, at the Middlesex Lounge.” He testified that he got into bed with KF when they got back to the apartment, then jostled KF awake. “She was talking to me,” he testified. He said he told KF to lift her arms up. He wasn’t sure if she responded, but she did compliantly raise her arms. He kissed her, took her shirt off, and tried to unhook her bra before passing out. Winston also testified that he woke up again in the middle of the night to find Willingham in bed with him, her tongue in his mouth and her legs wrapped around him. KF, he said, was still asleep on his other side.

Willingham told Adams that she and KF stumbled into her apartment and fell face down, fully clothed, onto her bed. Willingham says they did not buzz Winston in, but that he, like many Harvard Law students, would have known the building’s access code. She says that she awoke around 5 a.m. to find Winston on top of her, trying to penetrate her with his fingers. She said he also undid her bra, and started kissing her breasts. In her second interview, she also said she wasn’t sure if Winston managed to penetrate her with a finger, but said it felt as though her underwear were being pushed inside of her.

Willingham told Adams she spent a few moments trying to figure out what was going on, then, pulled his hair to try to get him off her. She reminded him he had a girlfriend. Winston stopped at that point, she said. Willingham said she then reached over to see where KF was and touched her naked back. The other woman was wearing only her tights, she said, and Winston was “petting or stroking” KF’s naked stomach and breasts.

By her account, Willingham asked if he’d taken off KF’s shirt and he said, “Oh, I did that.” She asked if he taken off KF’s bra too, and he responded, “I did that too.”

In his initial interview with Adams, Winston told a significantly more detailed story, saying that he also rubbed KF “everywhere on her” and that he was also “sort of like rubbing her crotch too.” He added, “I never got an actual finger all the way up her vagina,” but explained to Adams that he didn’t think KF would have minded if he had, she writes. He also said he was sorry for what minor actions he’d taken on KF: “I did quit it when I realized that she wasn’t all with it.”

He denied doing anything sexual with Willingham other than kissing but, in Adams’s words, “later acknowledged that it made sense to him that he may have been rubbing [Willingham’s] crotch, but he did not specifically remember.”

He added, “I never got an actual finger all the way up her vagina,” but explained that he didn’t think KF would have minded if he had. “I did quit it when I realized that she wasn’t all with it.”

Willingham testified at trial that she was extremely upset after waking up to see KF partially unclothed, saying she told Winston to go sleep in her out-of-town roommate’s bedroom. She sent a Gchat message to a friend around 7 a.m. that read, in part, “i think some seriously fucked up shit might have happened tonight…and i’m freakin’ out.”

Then she decided to get out of bed and confront Winston. She told Adams he said at first he didn’t remember what happened, then said he and KF had been “hooking up,” but that they stopped, Adams writes, “when it was clear to him that [KF] was asleep.”

Winston told Adams that he didn’t remember having that early-morning conversation, but acknowledged “it could have happened but he did not remember it because he was still impaired.”

Willingham testified that she went out for a sandwich after that, leaving KF asleep in one room and Winston in another. She returned, got back in bed, and woke up again at 9 a.m. to find Winston back in the bedroom, asking if she was OK. She responded that she was, but that KF wouldn’t be when she woke up and found herself naked. She said Winston “laid his head on the bed and said ‘I’m sowwy” [sic], then added, “Maybe she’ll think you undressed her.” Willingham said she answered, “I think she already does.” Winston replied “Thanks, K, I owe you one,” then left.

Winston testified at trial that he did kneel down next to Willingham’s bed, and that when Willingham asked why KF’s shirt was off, he replied, “‘Cause I took it off.” He said Willingham warned him KF would “freak out” when she woke up. From his testimony:

And I said, “Why would she freak out?” And Kamilah said, “Because I know [KF].” And she said, Kamilah said, “This is gonna be a problem for me.” And I said, “Well, if it’s gonna be such a problem for you, why don’t you put her shirt back on.” And then Kamilah, I don’t know what Kamilah said right then, but basically I left it at that. I left the room. I said goodbye, and I left.”

He previously told Adams that if he’d said “thanks, I owe you one,” he “would have been speaking in a sarcastic manner.”

The following afternoon, Willingham started sending what Yoffe later called “accusatory” texts. Willingham and KF both say they spent the next day extremely sick: not throwing up as with a typical hangover, but having diarrhea and intense stomach pains. KF says they spent the day huddled in the living room, trying to figure out what to do. In the afternoon, Willingham began sending carefully worded Gchats and texts to Winston.

“We were still trying to wrap our heads around what could have happened,” wrote Willingham in a statement she gave to Harvard, answering the question that Zalkind would pose at trial: why a law student would take, as Willingham did, five days to get to the hospital for a rape exam. Yoffe’s piece also draws attention to what she portrays as a significant delay: that Willingham “waited three months, until April of 2011, a few weeks before her graduation, to report the alleged assault from January.”

In fact, Willingham filed a report with the Cambridge police within three days of the alleged assault. (Correction, December 8: Slate editor John Swansburg says Yoffe was referring to when Willingham reported the alleged assault to campus authorities. The three-months-later timeline Yoffe cites is incorrect there too. The process took three months to go to an Administrative Board hearing, but Willingham told Jezebel she first reported the assault “the same weekend” it allegedly occurred to Sarah Rankin, director of Harvard’s Office of Sexual Assault Prevention and Response. The campus disciplinary hearing records show that Rankin met with Willingham and the law school’s dean of students, Ellen Cosgrove, the week after the alleged assault. Winston was informed of a campus-based “no contact order” between himself and Willingham around the beginning of February. That directly conflicts with Yoffe’s incorrect statement that Willingham didn’t report until spring.)

First, however, she exchanged texts with Winston, submitted in both the criminal and on-campus hearings:

KW: [KFs] super sick haha should I tell her to take a pregnancy test?
BW: Very very funny Kamilah
BW: Haha I hope she gets better I am trying to finish this brief in the library before the game starts
KW: Hahahah… but for realz… did you put your p in her v?
BW: No!! I passed out after some minor touchings no more than what you and i were doing a finger briefly in the V at most

Later, Willingham told him “you seriously breached my trust” and “i’m a little pissed.”

“It was reckless of me and I apologize,” Winston responded. “I remember it better now, there wasn’t any real touching going on, no fingering, I took her shirt off and then passed out—the next day I was still so wrecked I couldn’t remember it very clearly.”

Willingham asked him if it was “EVER okay” to initiate sexual contact with someone “while she’s asleep.”

“Never, I was seriously wrecked and I went too far,” Winston replied. “I wasn’t trying to force her I know it sounds like it, I was talking to her the whole time and she was talking back but in that passed-out mumbling way that is essentially being asleep and I was totally reckless I know. I’m sorry.”

“Did you do anything with me while I was asleep?” Willingham asked. She told Adams that Winston didn’t respond. Winston told Adams that he responded with a definitive “no.”

Willingham tells Jezebel she and Winston agreed to meet at a pub called Cambridge Common to talk about the situation. He greeted her “cheerily,” she says; she found it disgusting, considering their preceding conversation. She informed Winston she’d found a condom with blood on it in her wastebasket, and pointed out that KF had had her period that night.

“I asked if there was any chance it was his condom,” she remembers. “He got visibly nervous. I don’t remember exactly what he said, but he said [something like] he didn’t think so.” And in fact, it wasn’t: the condom was finally analyzed a year after Winston was indicted; the female DNA on it was Willingham’s, while the male DNA did not belong to Winston.

Zalkind suggests there’s no way Willingham didn’t know whose condom it was. “She was after him,” he says. “She went to the Cambridge Common and basically was accusing him of raping her friend, even though the friend never said she was raped and Kamilah never saw him touch her.”

On January 19, five days later, the two of them went to the emergency room. KF told Adams she understood “a forensic examination would not be helpful because of the amount of time elapsed,” but that she had a rape exam nonetheless and asked to be tested for sexually transmitted diseases.

Adams wrote that portions of Winston’s second account were “significantly inconsistent” from the first. She wrote that his explanation “that he believed [KF] welcomed sexual contact is not reasonable or credible.” She concluded he attempted to “substantially inflate” the time the two spent making out at the bar, to bolster his assertion that KF wanted to “hook up” at home, and said his observations that she was “essentially asleep” should have been “an indication that she was incapacitated and prevented from resisting” as well as “incapable of expressing willingness.” But she also concluded that there was no proof he had penetrated Willingham’s vagina with his finger.

In their decision issued September 21, 2011, the Administrative Board found that Winston had “initiated sexual conduct” with Willingham “while she was asleep or unconscious, and not capable of consenting.” They wrote:

The Board found that the student had initiated sexual conduct with the complainant while she was asleep or unconscious, and not capable of consenting. It found that after she pulled his hair, he stopped. It found that he had initiated sexual contact with the friend while she was incapable of consenting and that he stopped after the complainant objected.
The Board concluded that the student’s conduct toward the complainant was unwelcome and abusive or invasive, and that it had the effect of unreasonably interfering with her work or academic performance and/or created an intimidating, demeaning, degrading, hostile, or otherwise seriously offensive working or educational environment at Harvard Law School.
It found further that his conduct toward the friend in the presence of the complainant was unwelcome, and abusive or invasive, and had the effect of unreasonably interfering with the complainant’s work or academic performance, and/or created an intimidating, demeaning, degrading, hostile, or otherwise seriously offensive working or educational environment at Harvard Law School.

The Administrative Board recommended a “dismission” for Winston, meaning an expulsion with the option to re-apply. With a dismission, the faculty can vote to re-admit a student, a process known as a “faculty review.” Winston’s faculty review was successful, and he returned to school in the fall of 2012.

Willingham says she was curious about the standard of proof used during the review and why she wasn’t called to testify. She forwarded Jezebel an email conversation she had in 2014 with Ellen Cosgrove, an Associate Dean at Harvard Law, in which Cosgrove said Willingham would not be able to get any documents or much information about the review, because “faculty meetings are confidential.” She added only that the outcome of the meeting was to conclude “that the underlying findings were not supported by substantial evidence.”

In 2014, well before Yoffe wrote about Winston’s case, the Department of Education’s Office of Civil Rights announced it had substantiated a Title IX complaint against the school, ruling that Harvard Law mishandled two sexual assault complaints by not allowing the alleged victims to take part in appeals, and generally afforded more rights to defendants than complainants in post-hearing processes.

“Respondents were afforded the right to dispute Ad Board findings and to call and examine witnesses during the supplemental hearing process,” the investigators wrote, “while the Procedures did not afford any rights to complainants during this post-hearing process even though it could result in modified findings of fact and/or sanctions.” That is exactly what Willingham alleges happened to her.

In another piece, Yoffe calls measures adopted by Harvard in response to the investigation the equivalent of a “system stacked against the accused.” She accuses the film of failing to explore the role of the OCR, but likewise, Yoffe fails to explore its place in Willingham’s case. Willingham, she writes, was taken seriously by Harvard Law at every stage. But the OCR investigation suggests that, generally, the Department of Education did not believe even basic parity towards the alleged victim post-hearing to be the case.

It’s bizarre that such a detailed report could be essentially thrown out, during a review that the alleged victims had no part in. Less bizarre is what happened at the criminal trial, where, faced with conflicting stories, the jury apparently split the difference and convicted on a lesser count. (Statistically, frankly, it’s surprising it even got that far, given that it is exceedingly rare for campus sexual assault cases to proceed to a criminal trial.)

In 2014, the Office of Civil Rights ruled that Harvard Law afforded more rights to defendants than complainants in post-hearing process. That is exactly what Willingham alleges happened to her.

Winston returned to school for just three weeks. In October 2012, after Willingham graduated, Winston was indicted on two counts of indecent assault and battery against KF. The grand jury declined to indict on four counts relating to Willingham. Winston pleaded not guilty on all charges and was dismissed from school again while his case was pending.

Zalkind says it’s rare for a grand jury to decline to indict, and should be a significant indicator as to the believability of Willingham’s story. “[Cambridge grand juries] are very vigorous. The prosecutor asked the jury to bring back indictments on him on three counts with Kamilah: assault with intent to rape and two counts of indecent assault and battery and they came back with no bills. I’ve never had that happen.”

The grand jury declining to indict on any charges relating to Willingham was a blow to both of them, the women say. “I was hoping he’d at least get charged, even if wasn’t jail time, or that he had to register,” KF says. “Our only goal was for him to have to register as a sexual offender. But it won’t happen.”

Willingham says the two were reluctant to even go to the police to begin with. “We knew then and this was a very much part of our conversation, that getting involved with the criminal justice system, if they even believed us, would disrupt our lives as much as it did his. And it did. We spent four years in crisis mode.”

In the years that passed between the indictment in 2012 and the trial this March, Winston’s lawyer says his life ground to a halt, too.

“His life was pretty much on hold for four years,” Zalkind says. “He did some odd jobs. He tried to work with a classmate of his from high school. But he had to stop because of all the stuff with the trial.”

Winston was deeply frightened, Zalkind says, and that’s why he apologized for being “reckless” in the initial texts. “She accused him and he was frightened because he was drunk that night: ‘Did I do something I don’t remember?’ And of course he didn’t. This was awful for him.”

Since then, he adds, Winston has changed his relationship to alcohol.

“I think he realizes that whatever happened—he was not legally at at fault, but he should really not drink very much,” Zalkind says. “Because they were all drinking and imbibing.” He adds that Winston never felt like he’d done anything wrong: “He felt the person was very attracted to him, that there were mutual attractions… These were very sophisticated people. Everyone was used to drinking and being in adult situations.”

Willingham was living in California by the time the case went to trial and flew back to testify—only to discover that she had been booked into the same hotel as Winston’s entire family. (She hurriedly moved.)

“He felt the person was very attracted to him, that there were mutual attractions…These were very sophisticated people. Everyone was used to drinking and being in adult situations.”

She and KF both say testifying was humiliating, and that they were baffled by the verdict, of misdemeanor non-sexual touching. “I thought it was bizarre and nonsensical,” Willingham says. “I almost would’ve rather an acquittal because it would’ve made sense.”

Winston was acquitted of the serious sexual felonies, Zalkind adds, because the jury thought he was clearly more credible.

“He wasn’t trying to say things didn’t happen that did happen,” he says. “But he just wasn’t guilty of anything. He wasn’t making anything up. The stories that came out just didn’t have the ring of truth.”

The Hunting Ground has attracted both praise and controversy since its debut at Sundance in January 2015. Emily Yoffe is far from the only critic of the documentary, but with her first piece on it published in February, she was one of the first.

The documentary’s territory overlaps with Yoffe’s body of work. She began regularly covering campus sexual assault around 2013, with the controversial, still-discussed “College Women: Stop Getting Drunk,” which concluded that college women could keep themselves safer from rape by not drinking to excess. She followed with 2014’s “The Campus Rape Overcorrection,” which generously concluded that rape is bad (“Those who commit serious sexual crimes on campus must be held to account”) while claiming that misguided young activists like those behind End Rape on Campus, the organization founded by assault survivors Annie Clark and Andrea Pino, are leading a charge to put campus justice systems in place that “presume the guilt of the accused.”

She’s written two pieces about Drew Sterrett, the University of Michigan man who successfully sued the school over how his on-campus sexual assault hearing was handled, getting them to vacate their findings and take references to the disciplinary procedures off his college transcript. And, this year, besides penning two stories about the Hunting Ground’s flaws, Yoffe wrote one about campus sexual assault studies and surveys, something she also mentioned in the Sterrett stories. She concludes that pretty much all of them are no good, except for the National Crime Victimization Survey, released in 2013 by the Bureau of Justice Statistics. The NCVS survey concludes the incidence of rape among college-age women is much lower than the commonly-touted 1 in 4 or 1 in 5 statistic, finding that between 1995 and 2013, there were roughly 6.1 rapes per 1,000 female students, and that assault rates are significantly higher among non-students than students.

“Yoffe claims that misguided young activists are leading a charge to put campus justice systems in place that ‘presume the guilt of the accused.’”

But she doesn’t note that the NCVS is believed to be undercount rape and sexual assault victims, according to a 2014 study from the National Research Council’s Committee on National Statistics.

For one thing, it’s a survey about all types of violent crime, not focusing specifically on rape. For another, it doesn’t ask about “incapacitated” rape or sexual assault, the kind where the person is too drugged or inebriated to consent, which is believed to be the most common kind on college campuses. And finally, it uses the word “rape,” when even most rape victims don’t tend to use that word. From Vox:

A national survey from the Medical University of South Carolina found that 15 percent of college women who were victims of forcible rape would describe what happened to them as “unpleasant, but not a crime.” An additional 32 percent called it a crime, but not rape. For incapacitated rape, the proportions were even higher: 31 percent called it an unpleasant experience, and 40 percent a crime other than rape.

This year, a massive study by the American Association of Universities called the 1 in 5 statistic “simplistic,” even as it came up with similar figures for the schools it studied. From the report’s executive summary:

Overall, these comparisons illustrate that estimates such as “1 in 5” or “1 in 4” as a global rate, across all institutions of higher education, is at least over-simplistic—if not necessarily misleading. None of the studies which generate estimates for specific institutions are nationally representative.

Yoffe did an interview with the AAU study’s lead author (who declined to speak to Jezebel on the record), leaping on the word “misleading.” But the summary itself makes clear that the AAU authors mean that rates vary from institution to institution, and it’s simply not possible to make a definite estimate without studying every single college in the country.

Amy Ziering, The Hunting Ground producer, says they’ll keep working with the 1 in 5 statistic until better data shows otherwise. Their hundreds of interviews with college women, she said, confirmed in her mind that there’s a pretty clear issue.

“I’ve got a lot better things to do with my time than talk about a crisis that is not happening,” she says. “There’s no glory or gain in doing this work.”

As New York points out, though, the film does use one heavily-cited statistic that’s looking shakier all the time: the assertion that most campus rapes are committed by just a handful of serial rapists. The study that produced that assertion has lately been heavily criticized, and a subsequent study this summer found very different results.

“I’ve got a lot better things to do with my time than talk about a crisis that is not happening. There’s no glory in doing this work.”

Willingham decided not to speak to Yoffe, although she was contacted for comment. (KF says she never was, although her name is mentioned in court transcripts and she is not hard to find.) Willingham says she knew that Yoffe had a history of writing pieces defending accused sexual assailants, which made her uneasy.

Besides, she adds, she didn’t have much time. Yoffe’s messages, Willingham says, stated that her deadline was in 24 hours. “If her deadline was the next day, chances were her story was already written and she just wanted some damning quote from me,” Willingham says. “I didn’t want to talk to her, for reasons I think should be obvious.”

Zalkind, meanwhile, says The Hunting Ground producers reached out to Winston, who told them to contact his lawyer, which they never did. And while he has represented both alleged sexual assault victims and people being accused, he agrees with Yoffe’s contention that campus rape proceedings are “over-correcting,” in her words.

“Not that many years ago the proceedings were very unfair to women,” he says. “Recently it’s gone tremendously the other way, where cases that really should’ve ended in no responsibility have ended in responsibility.” But very recently, he says, the balance has shifted once again: “We think it’s starting to come back to somewhere in the middle, because lawsuits are being filed and are showing there’s not fairness.”

The way that the Winston-Willingham story has been told, both in the film and by Yoffe, shows how difficult it is to condense the essentially messy narrative of an alleged sexual assault between people who know each other, to use it polemically or to serve a preexisting narrative. And it shows, too, how divided sexual assault reporting has become: on one side, we have media outlets and narrators willing to show the perspective of alleged victims; on the other, writers like Yoffe talking to the people who say they were falsely accused. The resulting stories look so different it’s hard to even recognize them as belonging to the same factual universe. (And for obvious reasons, it’s rare to see an interview with anyone who admits to rape, leading to a strange landscape where the most important piece of the campus rape question—the campus rapist—is essentially invisible.)

While Yoffe’s use of data can be misleading—and while her pieces about specific cases tend to conclude that the accuser was wrong, lying, or drunk—she does raise solid questions about on-campus justice systems: questions that have been raised by many other journalists and academic freedom organizations. Accused students, for example, frequently say that schools don’t interview their defense witnesses during on-campus disciplinary hearings. As Tyler Kingkade at the Huffington Post points out, alleged victims have said the same thing.

But in Yoffe’s telling, on-campus procedures always favors accusers, the “overcorrection” she’s written about (in the same piece, she also likened them to “Soviet-style show trials”). There’s no mention, for example, of an investigation by Kingkade, which found numerous instances of students transferring schools with help from campus administrators while disciplinary proceedings are pending against them for alleged sexual assaults. That allows them to evade any kind of responsibility and keeping any mention of the allegations off their transcripts.

“We’re in agreement [with Yoffe] on improving the adjudication process to protect both alleged perpetrators and victims,” Ziering says. “The whole system needs to be shored up to avoid any miscarriage on either side. But I want to point out that those miscarriages are overwhelmingly on the side of victims. Let’s keep the focus where it needs to be.”

Yoffe also argues that if rape really happened frequently on campus, students would report it:

In the AAU survey, the women who said they experienced nonconsensual penetration but did not report it were asked why. The most common answer, chosen by 58.6 percent of aggregate respondents was, “I did not think it was serious enough to report.” At Yale, this answer was chosen by 65.4 percent of the respondents who said they had experienced forced penetration. What are we to make of respondents who attest that they’ve experienced such a vile assault yet don’t find it serious enough to report?
Even given the established reluctance of victims to report, there is an inexplicable chasm between the depredations that the survey portrays as a common experience and the low rate at which women go to the authorities.

That “inexplicable chasm” has actually been extensively studied (for example, in this 2003 study). The reasons for not reporting to police, the authors write, are consistent: “Incidents were more likely to be reported to the police when they had characteristics that made them more ‘believable’ (e.g., presence of a weapon or assailant who was a stranger). The use of alcohol and/or drugs by offenders and/or victims had a unique effect, causing students to be more likely to disclose their victimization to friends but not to campus authorities.”

Yoffe has written personally about the considerations around non-reporting. In 2012, she wrote an intelligent, moving piece about being sexually assaulted three times before the age of 20. Yoffe says she was groped by adults in incidents that today would likely be classified as assault and battery. She explains clearly why she never chose to report any of them: shame, shock over what to do, and, in her case, a sense that she wasn’t hurt enough to report.

“I was not traumatized,” she wrote. “In some way I was even empowered—I was able to handle these bigger, older males.”

Confirmation bias is poison for journalists. It’s what led me, in part, to defend Sabrina Rubin Erdely and her UVA story—incorrectly, vehemently, and in total error, shortly before the UVA story was revealed to be based entirely on a single account that cannot possibly be true.

My biases weren’t so much in favor of rape victims as a whole; they, like anyone else, are capable of lying or distorting facts. But I assumed that Erdely, an experienced reporter, would carefully vet everything her subject told her, to the best of her ability, and if she didn’t, that Rolling Stone’s famously brutal fact-checking process would do it for her. The early critics of the story had no inside connection to it, I thought, and were simply reacting to the unbelievable—to them—notion that someone could be gang-raped on a college campus.

I was wrong, and the memory of my wrongness has informed the way I approach every story since. But the opposite sort of bias is seemingly at work in Yoffe’s writings. Willingham’s story is one of perhaps 70 that appear on camera in the Hunting Ground. Yoffe finds an alternate explanation for others among them, describing the case of:

….Lizzy Seeberg, a 19-year-old who committed suicide by taking an overdose of antidepressants after reporting that a University of Notre Dame football player had forcibly kissed and touched her. (There was no allegation of rape.) It is agony to hear her father describe his daughter’s last days. But surely the filmmakers have an obligation to mention that Seeberg had long been treated for depression and anxiety and that her therapist noted she’d previously had “suicidal thoughts.” And fairness would require them to acknowledge the accused’s differing version of the evening.

That differing account—that Seeberg was troubled, that she’d done this sort of thing before, that maybe her suicide was coincidence, more or less—was actually the dominant one. It was pushed heavily by Notre Dame supporters, along with suggestions that maybe she was “all over” her alleged attacker. As Deadspin reported in 2012, no one interviewed Seeberg’s family until five days after she died, and then only briefly. An on-campus hearing was finally held a year after Seeberg’s death, when the alleged assailant was found not responsible. The same year, a woman came forward to allege that she was raped by a Notre Dame football player, and that virtually the entire team sent menacing texts to try to intimidate her into silence.

In Yoffe’s words, “fairness would require” her to mention some of that, too. It would arguably also require her to entertain at least a journalist’s basic curiosity for why Willingham and Winston went from warm friends to police reports in the span of a week.

Yoffe does allow that Winston was “not a perfect gentleman” that night in 2011—that boys will indeed be boys. And she’s correct that as far as the legal system is concerned, Winston has answered the charges. There’s no reason he shouldn’t be allowed back in school.

Kirby Dick, one of The Hunting Ground’s filmmakers, says that they conducted extensive vetting of each story that appears in the film, as well as submitting it for legal review. Dick says they also reached out to the accused men in each major story: “They all declined to go on camera or didn’t respond.”

Yoffe accuses them of misleading the public by presenting a graphic near the end of the film that says Winston was indicted, but not that it was for his actions against KF, not Willingham. The filmmakers do say they changed that card after the film premiered at Sundance—because it premiered in January there, and the case didn’t go to trial or reach a verdict until March. “We updated it when we had new information,” Ziering says. It now reads: “A grand jury indicted the accused with felony sexual assault of Kamilah’s friend and a jury convicted him of misdemeanor non-sexual assault. He was never tried for assaulting Kamilah.” (Insider Higher Ed notes that the latest version of the film also quietly drops the claim that 35 schools declined to comment on allegations regarding their students.)

Yoffe’s line of thinking has been influential: the Washington Post, as well as a Washington Examiner reporter, and the Libertarian publication Reason, among others, all aggregated her articles as evidence that the documentary was untrustworthy. Even the New York Times called the piece “a blistering takedown.”

Around the same time the Hunting Ground re-aired on CNN, a website called The Brandon Project was launched. It’s credited to Resilience Communications, a “crisis communication” firm, and takes pains to express that it’s not meant as an attack on sexual assault victims: “Our efforts are not aimed at minimizing the problem of sexual assault on college campuses, or the enormous institutional and emotional obstacles victims face in obtaining redress. We believe strongly that victims deserve justice.” The site presents a timeline of the night, clips from the movie, and court documents to argue for Winston’s innocence and the film’s innate bias.

KF says the trial and its aftermath made her “more cynical.” She recently gave birth to a baby girl, and says she’s surprised by how much time she’s spent worrying that someone might hurt her one day. “There’s very little women can do. Especially with women like her [Yoffe] ruining the fight.”

KF also says she’s decided that she would never make a sexual assault complaint again, no matter what might happen.

“I would definitely not do it over again,” she says. “I’m not putting myself through that. The victims end up suffering more. You have to put yourself out there and be judged. And it takes so much time out of your life. If I added up all the hours I spent driving, sitting in courtrooms, talking to lawyers, it would be weeks. I feel like I lost a good part of my time—wasted it, really—trying to make sure he doesn’t hurt women again.”

Correction: An earlier version of this post incorrectly identified the organization begun by Annie Clark and Andrea Pino as Know Your IX. Their organization is End Rape on Campus. Know Your IX was founded by Dana Bolger and Alexandra Brodsky.

This post has also been corrected to clarify that Yoffe was the first person to identify Winston in connection with the film; the Harvard Crimson was first to use his name in print in connection with the case.

This piece has been updated from its original publication with a quote from the September 2011 findings from the Harvard Law Administrative Board.

Illustration by Jim Cooke.

Contact the author at [email protected].

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