If a new multi-university study led by the University of Arizona demonstrates that a programme proven to cut rapes by an astonishing 46 per cent at Canadian universities is also effective south of the border, US universities may finally be forced to stop causing the rapes of hundreds of their female students.
I use the word “cause” here in the legal sense. In civil [tort] lawsuits, anything that was a significant factor, and without which a rape or other injury probably would not have occurred, can be a “cause”. Thus, deliberately using an ineffective prevention programme when a more effective alternative is available could be at least one cause of these preventable rapes.
For example, in a famous case, a door lock which didn’t work was found to be a cause of the rape of a motel guest, even though the primary cause was obviously the criminal behaviour of the rapist. The motel was found liable.
On that basis, a university could also be held legally liable to those who would have been protected if it had used something like the Canadian Enhanced Assess, Acknowledge, Act Sexual Assault Resistance programme – which was also shown in a 2015 New England Journal of Medicine paper to reduce attempted rapes or other forms of sexual assault by 63 per cent.
Another valid comparison would be a doctor who prescribes an ineffective drug to prevent an illness, who could then be liable to those who would have been spared had an effective drug been used. In this instance, imagine a university whose doctors routinely provided vaccines that hadn’t been shown to be effective but represented that they were, while declining to provide vaccines proven to slash illness rates by almost 50 per cent.
Liability, of course, depends on the assumption that the Canadian programme would indeed be similarly effective in a US context. This is what the five-year, $2 million Arizona study will investigate – but knowledgeable observers expect the hypothesis to be confirmed.
According to the lead author of the NEJM paper, Charlene Senn, a professor of psychology at the University of Windsor, Ontario and the developer of the EAAA programme, virtually none of the campus anti-rape initiatives in the US have been proven to actually reduce rape. These multi-million-dollar programmes typically focus on trying to convince men not to rape, rather than helping women to recognise a potential date-rape situation, and to say “no” clearly, forcefully and effectively.
Of course, it is tempting to note that males perform the rapes, and to argue that anti-rape programmes shouldn’t be aimed at females because that’s “blaming the victim”.
But as the Arizona study’s principal investigator, Elise Lopez, pointed out when the study was announced earlier this month, “we wouldn’t stop wearing our seat belts hoping that nobody else is driving drunk”. And it is significant that in order to deal with other recurrent crimes on campus, such as theft, universities do not have programmes aimed at persuading students not to commit these crimes. Instead, they logically warn students about the danger and explain how to reduce the risk of being victims (lock your bicycle, don’t leave laptops unattended, etc).
In other words, students are warned to take reasonable precautions against the readily foreseeable criminal acts of others.
This is also the approach taken by the EAAA. It aims, among other things, to help women better assess the risk of sexual assault by male acquaintances, overcome emotional barriers to objecting forcefully and effectively to unwanted sexual behaviour (such as loudly shouting “no” rather than saying “I'm not sure”), and physically resist unwanted advances.
Lopez stressed that the programme should only be part of a “comprehensive solution”, which may include a variety of components and approaches. But it is important to note that, as well as preventing rape, the EAAA programme also made it less likely that women who were victims of rape would blame themselves for what had happened. On this basis, even exaggerated concerns about “blaming the victim” should not deter colleges from using these techniques.
If they don’t, they should not be surprised if a female student who was the victim of date rape sues them for being a cause – at least in a legal sense – of what she needlessly suffered.
John Banzhaf is a professor of public interest law at the George Washington University Law School in Washington, D.C.
