6. The New Rules of Engagement
To punish the alleged perpetrators of sexual violence, colleges have put in place systems that are heavy-handed and unfair. Efforts to prevent sexual violence from occurring are unfortunately no more enlightened. College students today are increasingly treated as a special sexual caste, who unlike their peers out in the working world can’t be relied upon to have sex without convoluted regulations that treat lovemaking as if it were a contract negotiation. Often, they are governed by a regimen called “affirmative consent,” an attempt by legislators and administrators to remove all ambiguity from sex.
The federal government has so far not mandated affirmative consent as a national standard, but states have been enthusiastically embracing the idea. Andrew Cuomo, governor of New York, recently enacted an affirmative consent standard for all State University of New York schools, calling the statistics on sexual assault “breathtaking.” California just became the first state to write the practice into law for all public and private colleges. The precise rules vary from place to place, but the point is to systematize the progression of a sexual encounter. Consent can’t be presumed—even between members of an established couple. It must be affirmatively given—for each and every sexual encounter and for every sex act.
At Ohio State University, two young people who want to engage in sexual congress might be well advised to first consult with the philosophy department and the law school. The university’s consent guidelines state, in part: “Consent is a knowing and voluntary verbal or non-verbal agreement between both parties to participate in each and every sexual act.” “Effective consent can be given by words or actions so long as the words or actions create a mutual understanding between both parties regarding the conditions of the sexual activity—ask, ‘do both of us understand and agree regarding the who, what, where, when, why, and how this sexual activity will take place?’” “Regardless of past experiences with other partners or your current partner, consent must be obtained. Consent can never be assumed, even in the context of a relationship.”
The Foundation for Individual Rights in Education is a civil-liberties group dedicated to defending constitutional rights on campus, and Joseph Cohn is its legislative and policy director. The group says affirmative consent is both unnecessary and potentially pernicious. “Our laws already make sexual activity without consent illegal,” Cohn says. Affirmative consent, he says, makes sexual activity that is lawful off campus a punishable offense on it.
Advocates of affirmative consent argue that these regulations won’t lead to frivolous accusations. They say only women who truly haven’t given consent will ever bring a charge. But under an affirmative consent regime, a young man can be threatened with expulsion even if his sexual partner doesn’t say no.
The Yale Daily News recently reported on a sexual assault case that illuminates what can now be considered an offense worthy of punishment and the elaborate investigative and hearing processes now in place to adjudicate who agreed to what. A male and female who were sometime lovers hooked up one night after she had been drinking and they had been sending flirty texts. (She wrote to him, “Don’t let me try to seduce you though. Because that is a distinct possibility.”) She eventually invited him to her room, where she says she capitulated to his desire for sex because in the past when she refused him he would scream and cry, which she found overwhelming. His version was that upon arrival she grabbed him, kissed him, they each took off their clothes, and then had sex twice that evening and once in the morning. Although she was sober by the time of the morning encounter, she later told Yale officials that all of the sex was nonconsensual because she was too drunk during the evening to consent, and in the morning, the Yale Daily News reports, “she did not resist because she felt refusal would be too emotionally exhausting.” A full year after the encounter, she brought a sexual assault charge against the young man, hoping to get him expelled. There was an investigation by an “impartial fact-finder,” a written report, then a three-and-a-half-hour hearing. The tribunal found that the young man did not violate Yale’s sexual misconduct policy.
It might easily have gone the other way, given the capaciousness of Yale’s consent standard: “Yale’s definition of consent reflects the University’s high expectations and permits discipline for behavior that does not meet a criminal standard,” reads Yale’s Title IX FAQ. Yale “may find that an encounter took place without coercion, force, or threat of force (criteria often associated with the term ‘rape’) but still deem it to have lacked the unambiguous ongoing agreement that constitutes consent under the Yale standard.”
Carol Tavris is a social psychologist and author of the feminist classic The Mismeasure of Woman and, with Elliot Aronson, Mistakes Were Made (but Not by Me). She says she is troubled by the blurring of distinctions between rape (notably by predatory males), unwanted sex (where one party agrees to sex not out of desire but to please or placate the partner), and the kind of consensual sex where both parties are so drunk they can barely remember what happened—and one of them later regrets it. She says, “Calling all of these kinds of sexual encounters ‘rape’ or ‘sexual assault’ doesn’t teach young women how to learn what they want sexually, let alone how to communicate what they want, or don’t want. It doesn’t teach them to take responsibility for their decisions, for their reluctance to speak up. Sexual communication is really hard—you don’t learn how to do it in a few weekends.”
Tavris also believes holding only men responsible for their sexual behavior has pernicious effects on women because it supports a victim identity that is already too prevalent in our society. “It’s so much easier to be a victim than to admit culpability, admit your own involvement, admit that you made a mistake,” she says. “It’s much easier to say it’s all his fault. Look, sometimes it is all his fault. That’s called rape. But ambiguities and unexpected decisions are part of many encounters, especially sexual ones.”
7. The Alcohol Taboo
Government officials and campus administrators are paying more attention to what’s going on between the sheets in dorm rooms than ever before. Despite all their newfound efforts to curtail sexual violence on campus, however, they’re willfully ignoring the most important single factor running through accounts of such violence: alcohol.
It’s a surprisingly loaded subject, given the widely acknowledged prevalence of drinking on American campuses. Last year, I wrote about drinking and sexual assault in a Slate piece titled, “College Women: Stop Getting Drunk.” I said that binge drinking was bad for everyone but that it presented a particular danger for young women because it made them more vulnerable to sexual assault—I described sober predators who specifically targeted intoxicated women. I was widely denounced for “victim-blaming.” This year, I was disinvited to speak at a West Coast college after board members of a student organization that had invited me decided my presence would make student victims “feel unsafe.”
In the White House report “Not Alone,” the Obama administration promises to develop new prevention strategies for campus sexual assault. But that’s going to be difficult if it continues to refuse to address drinking. Raynard Kington, president of Grinnell College and former director of the National Institute on Alcohol Abuse and Alcoholism, wrote in Inside Higher Ed in response to the report, “As a public health physician, I was surprised and disappointed that the word ‘alcohol’ literally does not appear anywhere in the chapter on prevention.” He said he understood the concern about blaming the victim when discussing alcohol, but in tackling sexual assault at Grinnell he realized “we would never address the problem unless we also addressed the issue of excessive drinking.”
A September article in the Chronicle of Higher Education noted that for the past fifteen years, Department of Justice grants to study campus sexual assault prevention have specifically excluded focusing on alcohol. Why? Because DOJ didn’t want any emphasis on “changing victim behavior.” The Chronicle article quoted a coordinator for Partners in Pre
vention, a higher-education substance-abuse program, who said, “What we steer our campuses away from is anything that says someone experienced gender violence because they had been drinking. Even if a student is sitting in a residence-hall room, gender violence can happen to them.”
It is simply misleading to tell young women they have as great a chance of being sexually assaulted while in their dorm studying at one p.m. as they do at a drunken frat party at one a.m. There are patterns to victimization. The “Campus Sexual Assault Study” found the majority of victims were freshmen and sophomores, the most common time of year to be assaulted is when school begins in the fall, the most common days were Friday and Saturday, the most common time was after midnight. People who had been previously assaulted were at far greater risk of revictimization. Alcohol was overwhelmingly an element. The United Educators study of insurance payouts for sexual assault found that “alcohol was a significant factor in nearly all of the claims studied.”
And it’s not just about conveying to young women the dangers of drinking. It’s equally important to tell young men about the jeopardy they face when having an alcohol-fueled sexual encounter at college. While women’s consumption is often considered a mitigating factor at campus tribunals, men’s consumption generally is not. This disparity is sex discrimination, says Brett Sokolow, president of the National Center for Higher Education Risk Management. Sokolow has long fought for harsh penalties for accused men on campus. But in an open letter titled “Sex and Booze,” he writes: “If both are intoxicated they both did the same thing to each other. Why should only the male be charged if both students behave in ways defined as prohibited by the policy?” He has been called in to consult on cases in which schools have suspended or expelled the young man when both students were equally intoxicated. Schools that are doing so, he says, are creating male “Title IX plaintiffs.”
Sokolow also says schools err when they adhere to an unrealistic standard that consumption of alcohol renders consent moot. Criminal statutes generally require that for sex to be non-consensual due to alcohol or drugs, the accuser be not just intoxicated but incapacitated. Having had a few drinks does not mean people, even young people, lack the capacity to make decisions about their actions, however poor those decisions may look in retrospect. Sokolow notes, however, that at some colleges “boards and panels can’t tell the difference between drunk sex and a policy violation.”
To the extent the Obama administration has addressed the role of alcohol in sexual assault, it’s done so in a way that suggests it has not thought carefully about this potentially complicated issue. When the president announced in “Not Alone” that his administration was committed to “putting an end” to sexual violence on campus, the first step he suggested was to have every college student take a survey. (The CASA bill would make this survey taking mandatory.) The administration released a “toolkit,” a sample survey. Creating a national sexual assault census might seem to solve the problem of unrepresentative studies, though it is concerning that the federal government would require students to answer invasive questions about their sexual experiences, even anonymously. (One question asks respondents whether they’ve experienced, against their will, “someone putting their finger or an object like a bottle or candle in your vagina or anus.”)
But some sections of the toolkit seem less interested in gathering data than in promoting a black-and-white view of situations that are notoriously murky. One section, titled “Rape Myth Acceptance,” lists what it describes as myths about drinking and rape. These include, “If both people are drunk, it can’t be rape” and “It shouldn’t be considered rape if a guy is drunk and didn’t realize what he was doing.” It is obviously incorrect to say that if both parties are drunk, it can’t be rape or to suggest that being drunk could ever be an excuse for rape. But this exercise in supposed myth busting doesn’t allow for the ambiguity of these often bedeviling situations, and it fails to acknowledge that when both people are drunk, sometimes they both make regrettable decisions and have genuinely divergent views about what happened the next morning.
K. C. Johnson, of the Manhattan Institute’s Minding the Campus blog, has compiled a list of top-ranked institutions, including Columbia, Duke, and Stanford, whose policies could lead to a young man being found responsible for a sexual offense simply if the complainant establishes that she had any degree of intoxication. Johnson notes that at Brown if two people were drinking and later an accusation is made, the disparate treatment is stark. The policy states: “A charged student’s use of any drug, including alcohol, judged to be related to an offense will be considered an exacerbating rather than a mitigating circumstance.”
8. A Matter for Prosecutors, Not Professors
The names Hannah Graham and Morgan Harrington, two Virginia college students who were kidnapped, raped, and murdered, are powerful testimony to the need to get campus sexual assault right. Jesse Matthew, thirty-two, being held for Graham’s murder, has also been linked to Harrington’s and will be tried for the rape of a third woman who managed to get away. When he was a college student, Matthew was expelled from two consecutive schools, Liberty University and Christopher Newport University, after accusations of rape. Tragically, neither case ended up in the criminal justice system. It is precisely because serial predators of the kind Lisak describes do exist that we should recognize adjudicating rape is not the job of college administrators but of law enforcement. Expelling a predator only sends him out into society to attack again.
Consider the Rolling Stone article about the alleged gang rape at the University of Virginia, which reignited a heated national debate about the treatment of victims on campus. The article is now unraveling, with both Sabrina Rubin Erdely’s journalism and her source’s account called into question. But the story did raise legitimate concerns about reporting requirements on campuses. Let’s assume that the alleged victim, Jackie, did tell a dean at the university that she had been the victim of a gruesome attack, as Erdely wrote in her story. How could an allegation of a clearly criminal act not be reported directly to law enforcement? As my colleague Dahlia Lithwick has explained, the federal government mandates that schools offer a “noncriminal, survivor-centered, confidential response” to victims. This means not reporting a crime to the police if the victim prefers not to. (Erdely wrote that Jackie had been told by the dean that she could make a criminal complaint, but had declined to do so.) Respecting the feelings of victims is important, and crucial to encouraging more women to report violence. But elevating the psychological comfort of victims over society’s need to punish criminals will only let perpetrators go free.
The critiques of how the criminal justice system treats victims are many and justified, but that’s an argument for further reform and for finding ways to reduce the trauma to victims, not for asking schools to take over the role of law enforcement. (To its credit, the proposed Campus Accountability and Safety Act does recognize the important role the criminal justice system should play in campus sexual assault and calls for standardizing cooperation between colleges and local law enforcement so that more perpetrators are investigated by trained law-enforcement professionals.)
FIRE’s Joseph Cohn says the unfortunate but pervasive message students get is that law enforcement is not there to help. “It’s not perfect. But that’s not the argument for seeking justice outside it.” If victims don’t go to the police, he adds, “the conviction rate is zero.” He says when students are getting sexual assault education, administrators must emphasize the importance of procedures to protect evidence and must tell them about going to the hospital to get a timely rape kit—it has to be done within seventy-two hours. Doing so doesn’t mean a student is committing to a criminal charge. But without such steps, it can be futile to later try to bring one.
9. The Way Forward
What is to be done? How can the government and institutions of higher education address sexual assault, support victims, identify predators, and not unfairly punish innocent students?<
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A good place to start would be scaling back the powers of the Department of Education’s Office for Civil Rights, which has overstepped its bounds in micromanaging university policies and enforcing draconian rules that infringe on the rights of the accused. And before making policy based on alarming statistics, officials should ponder a study’s limitations and read all the footnotes.
Rather than creating a separate (and unfair) system of justice, we should ensure the safety of college students the same way we ensure the safety of those who aren’t in college. Instead of universities writing expansive and elaborate sexual conduct rules, they should rely on the narrower statutes that govern criminal sexual assault and civil sexual harassment. “Affirmative consent” regulations should be struck. These rules dictate how young adults in college make love, and that’s both ridiculous and quixotic. (There’s a vast difference between telling people how to conduct their sex lives and having laws that punish those who perpetrate sex crimes.) When universities do take action against a student for sexual misconduct, if the definition of misconduct is narrower, and if there is a return to a standard of “clear and convincing evidence,” as there should be, there will be fewer miscarriages of justice.
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