If I could rape someone, who would it be?
This now infamous question, asked at the end of a fraternity questionnaire at the University of Vermont, led to the fraternity being suspended. But let’s say that the university took no action in response to this question. And let’s say that the university also took no or only minimal action in response to a rise in the number of (acquaintance) rapes on its campus over a period of two years. Finally, let’s say that a victim was raped at college by a stranger, who turned out to be one of the members of this fraternity, and sued the school for negligence. If the university moved for summary judgment dismissing the complaint, claiming that the rape was not foreseeable, should the court grant the motion? According to the opinion of the United States District Court for the Eastern District of Wisconsin in Lees v. Carthage College, 2011 WL 3844115 (E.D.Wis. 2011), the apparent answer is, “yes, the court should grant summary judgment” even in the face of expert testimony to the contrary. In fact, according to the court, such expert testimony should be deemed inadmissible.
In Lees, the victim was raped at Carthage College in 2008. The victim lived at an all-female residence hall, Tarble Hall, and
[d]uring an orientation at Tarble Hall, the residents stood up, introduced themselves to each other, talked about their hobbies and interests, and then went down to the lake to pick out a rock to use as a “door stop” for their dorm doors. The resident assistants (RAs) encouraged the Tarble residents to use a rock to prop their doors open when they were in their rooms so they could mingle and get to know other residents.
Soon thereafter, while the victim was watching television in her room with the door open, two men entered at around 12:30 A.M.; one held the victim down while the other raped her. At Carthage, anyone with a valid student ID can enter any residence hall between the hours of 8:00 A.M. to 2:00 A.M.
Pursuant to federal law, Carthage reported the following number of forcible sexual offenses for each year: 2008–4; 2007–5; 2006–1; 2005–1; 2004–0; 2003–1. All of these incidents were acquaintance assaults (also known as date rape), meaning that the victim was in some way an acquaintance of the perpetrator. None of these incidents involved the victim being assaulted by a stranger.
Based upon the above facts, the victim sued Carthage College for negligence, meaning that she needed to establish, inter alia, that the college breached a duty of care towards her because her rape was foreseeable and the college took insufficient actions to prevent it. The college responded by filing for summary judgment, and the victim responded to the college’s motion by proffering the expert testimony of Dr. Daniel Kennedy, Professor Emeritus at the University of Detroit, where he taught criminology and security administration for over thirty years.
Dr. Kennedy wr[ote] that “an assault on a female dorm resident was generally foreseeable given prior history, perimeter failures, and visitation and staffing policies at Tarble Hall. Had this foreseeability been recognized and the security deficiencies described above been rectified, it is more likely than not the sexual assault against Katherine Lees would not have taken place.”…Dr. Kennedy later explained that “unreasonable access was granted through the visitor policy, the ‘open door policy,’ and the lack of an electronic lock/door prop alarm on the basement door. Thus, it was clearly foreseeable that with such access, stranger-on-stranger rape could and eventually would occur.”
The Eastern District of Wisconsin disagreed, initially finding that
Carthage was only required to take “precautions commensurate with the danger” to its students from criminals….Indeed, the applicable standard of care is directly informed by foreseeability because the “amount of care to take is a function of the danger that care would avert.”…Dr. Kennedy’s opinion that the security at Tarble Hall should have been improved is based on his corresponding conclusion that the attack on Ms. Lees was foreseeable. This is an unreliable conclusion, which means that Dr. Kennedy’s testimony on the standard of care is inadmissible.
So, why did the court find that Dr. Kennedy’s testimony was unreliable? According to the court,
Dr. Kennedy maintain[ed] that [the victim’s] assault was foreseeable in light of the increase in sexual assaults at Carthage College in 2007 and 2008. However, it is undisputed that these were instances of acquaintance rape, not stranger rape. Acquaintance rape involves two people who know each other and/or are voluntarily in each other’s presence. Therefore, acquaintance rape cannot be prevented through increased physical security measures. Instead, acquaintance rape is addressed by educating male and female students about how to avoid dangerous situations….A reasonable person exercising ordinary care would not implement increased security measures in response to a problem that cannot be prevented through increased security.
Furthermore, according to the court,
Dr. Kennedy states[d] generally that rape by a stranger was foreseeable because there are a sufficient supply of sexual offenders on a college campus. Dr. Kennedy concede[d] that the prevailing problem on college campuses is acquaintance rape, not stranger rape….Dr. Kennedy attempt[ed] to link the prevalence of acquaintance rape with the foreseeability of stranger rape by citing studies which conclude that 30–35% of male subjects would commit a rape if they “thought they could get away with it.”…Yet none of the studies cited by Dr. Kennedy focus on the distinction between assaulting a stranger and assaulting an acquaintance. For instance, according to one article, “[c]ultural expectations that partygoers drink heavily and trust party-mates become problematic when combined with expectations that women be nice and defer to men. Fulfilling the role of the partier produces vulnerability on the part of women, which some men exploit to extract non-consensual sex.” Elizabeth A. Armstrong, Sexual Assault on Campus: A Multilevel Integrative Approach to Party Rape, Social Problems, Vol. 53, Issue 4, 2006, at 484. Dr. Kennedy does not explain how it is foreseeable that a male college student who exploits the use of alcohol to assault someone he met at a party would also exploit lax security measures to assault a complete stranger in her dorm room. It simply does not follow that stranger rape is foreseeable based upon the general prevalence of acquaintance rape. “[N]othing in either Daubert or the FederalRules of Evidence requires a district court to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.”
My response: Really? First, let’s look at the court’s definition of acquaintance rape. According to the court, “[a]cquaintance rape involves two people who know each other and/or are voluntarily in each other’s presence.” In other words, acquaintance rape involves (1) two people who know each other and are voluntarily in each other’s presence; (2) two people who don’t know each other and are voluntarily in each other’s presence; or (3) two people who know each other and are not voluntarily in each other’s presence.
Given this third example, I don’t see how the court concluded as a matter of law that acquaintance rape cannot be prevented through increased physical security measures.” The victim in Lees was a victim of stranger rape, but it is easy to see how she could have been the victim of an acquaintance rape that could have been prevented through increased security measures. The victim in Lees could have known her rapists through classes. Through the school newspaper. Through intramural sports. Through student government. Etc., etc. And, of course, while she knew her rapists, she could not have wanted to engage in sexual relations with them. Indeed, she might not even have wanted to interact with her eventual rapists on the night in question. Maybe they had fought. Maybe she was tired. Maybe she was drunk.
And yet, given the fact that any student with a valid ID could access the victim’s all-female residence until 2:00 A.M., and given the fact that the victim was encouraged to leave her door propped open, any student at the school who wanted to rape her had easy access to her. Now sure, increased security measures wouldn’t eliminate acquaintance rape, and it wouldn’t do much to prevent a certain type of acquaintance rape. But such measures certainly would be likely to decrease a certain type of acquaintance rape, namely the type of acquaintance rape when the victim is not voluntarily in the presence of the rapist. The way I say it, even if the particular way in which the victim in Lees was raped wa not foreseeable, her rape was certainly in the foreseeable “zone of risk” created by the increase in acquaintance rapes on campus, meaning that there was at least a triable issue of fact as to whether Carthage College was negligent.
Second, what about the court’s conclusion that “[i]t simply does not follow that stranger rape is foreseeable based upon the general prevalence of acquaintance rape,” rendering Dr. Kennedy’s testimony too unreliable to be admissible under Federal Rule of Evidence 702? Well, another Federal Rule of Evidence is Federal Rule of Evidence 413. Enacted as part of the Violent Crime Control and Law Enforcement Act of 1994, Federal Rule of Evidence 413 provides that
In a criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault. The evidence may be considered on any matter to which it is relevant.
One of the main reasons for the adoption of this Rule was social science evidence of high recidivism rates for sex offenders, and courts have gone whole hog with it (rightfully or wrongfully), finding that evidence of past sexual crimes are admissible against defendants charged with sexual crimes, even if the crimes are factually quite different. See, e.g., State v. Wright, 2011 WL 6091243 (La. 2011). The general position of the courts seems to be that evidence that a defendant committed a sex crime makes it more likely that he committed another sex crime, even if the latter crime is quite different from the prior sex crime, making the evidence admissible under Rule 413, with jurors then left with the task of how much weight to give to the evidence.
This being the case, how was Dr. Kennedy’s testimony deemed inadmissible? He used the exact reasoning used by Congress in enacting Rule 413, and federal courts have bent over backwards to accommodate Congressional intent and apply Rule 413 in a wide variety of cases.