EDUCATION

The Uncomfortable Truth About Campus Rape Policy

At many schools, the rules intended to protect victims of sexual assault mean students have lost their right to due process—and an accusation of wrongdoing can derail a person’s entire college education.

EMILY YOFFE

PETER YANG

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This is the first story in a three-part series examining how the rules governing sexual-assault adjudication have changed in recent years, and why some of those changes are problematic. Read the second installment here, and the third one here.

Kwadwo “kojo” bonsu, 23, was on track to graduate in the spring of 2016 with a degree in chemical engineering from the University of Massachusetts at Amherst. Bonsu, who was born in Maryland, is the son of Ghanaian immigrants. He chose UMass because it gave him the opportunity to pursue his two passions, science and music. He told me he hoped to get a doctorate in polymer science or chemical engineering. At UMass he was a member of the National Society of Black Engineers. He also joined a fraternity (he was the only black member), played guitar in a campus jazz band, and tutored jazz guitarists at a local high school.

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In the early hours of Saturday, November 1, 2014, Bonsu, then a junior, was at the house where many of his fraternity brothers lived. There he ran into another junior, whom I’ll call R.M., a white female marketing student. According to a written account by R.M., who declined to be interviewed for this story, the two started talking and smoking marijuana; eventually they kissed. As she wrote, “It got more intense until finally I shifted so that I was straddling him.” She told him she wasn’t interested in intercourse and he said he was fine with that.

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Then, she wrote, “I started to move my hand down his chest and into his pants.” R.M. interrupted this to take a phone call from a female friend who was also at the house and trying to find her. The call ended and then, R.M. wrote, “I got on my knees and started to give him a blow job.” After a short time, “I removed my mouth but kept going with my hand and realized just how high I was.” She wrote that she felt conflicted because she wanted to stop—she said she told him she was feeling uncomfortable and thought she needed to leave—but that she also felt bad about “working him up and then backing out.” (In Bonsu’s written account, he stated that R.M. said she needed to leave because she was concerned her friend might “barge in” on them.) The encounter continued for a few more minutes, during which, she wrote, he cajoled her to stay—“playfully” grabbing her arm at one point, and drawing her in to kiss—then ended with an exchange of phone numbers. R.M. had not removed any clothing.

R.M. then went down to the kitchen to find her friend. As she explained in her statement, “[My friend] knows I was with Kojo. She probably told all the brothers in the room, and they’re gonna hate me when they find out”—she didn’t explain why. “I can never come back here.” Her friend started teasing her, asking how it had gone. R.M. was a resident adviser in her dormitory—someone tasked with counseling other students—and at that moment, she wrote, “as my RA training kicked in, I realized I’d been sexually assaulted.” She wrote that while in retrospect she should have left if she didn’t want to continue the encounter, she hadn’t wanted to be a bad sport—“that UMass Student Culture dictates that when women become sexually involved with men they owe it to them to follow through.” She added, “I want to fully own my participation in what happened, but at the same time recognize that I felt violated and that I owe it to myself and others to hold him accountable for something I felt in my bones wasn’t right.”

As she talked with her friend, R.M. wrote, she became distraught. She contacted the RAs on duty and reported that she had been sexually assaulted. The RAs called the campus police, who notified the Amherst police. R.M. gave her clothes to a police officer for evidence, although she said she was not ready to file charges. Then she went to the hospital, where she was given a battery of medications for possible STDs.

Just before Thanksgiving, according to a federal lawsuit filed against the university by Bonsu’s attorney, Brett Lampiasi, R.M. went to the dean of students and filed a complaint against Bonsu. She also reported him to the Amherst police. The police investigated and closed the case with no charges filed. On January 12, 2015, Bonsu got an email from a school administrator informing him that a “very serious” allegation had been lodged against him and that until a hearing was held, he was subject to “interim restrictions”: He could not contact R.M., he could visit no dormitories other than his own, he was limited to eating at a single dining hall, and he was forbidden from entering the student union.

The restrictions meant that Bonsu could no longer play with his jazz ensemble at a weekly Sunday brunch. Nor could he attend the meetings of the other organizations he’d joined. He was warned not to talk about the allegation, so he couldn’t explain to his friends why he was suddenly withdrawing from his activities. R.M. soon complained to the school that Bonsu had violated his no-contact order by trying to friend her on Facebook. Bonsu vehemently denied the allegation to administrators. He offered the university full access to his Facebook account and phone records. According to the suit, the university declined the offer. He later sent the records anyway. But in a February 4 letter, Bonsu was told that because of the later allegation, a new set of interim restrictions was being put in place. Effective immediately, Bonsu was banned from all university housing and was allowed on campus only to attend classes. His mother and an uncle drove up from Maryland to help him appeal his restrictions, but were largely unsuccessful.

He reached out to a student group that helps minority and other underrepresented college students, explaining in an email what had happened with R.M., protesting his innocence, and describing his treatment as discriminatory and unlawful. The student who received the email forwarded it to the group’s listserv, adding a note about spreading the news in order to organize a rally on Bonsu’s behalf. This email got back to campus authorities, the lawsuit says, and because Bonsu had used R.M.’s name, he received a new interim restriction: a total ban from campus.

Bonsu’s lawsuit describes the period that followed as one of extreme stress, during which he lost weight, contracted pneumonia, and was forced to drop two courses because the restrictions placed on him precluded him from attending class during his midterm exams. His hearing was on April 2, 2015. By then he was living back home in Maryland, sick a second time with pneumonia and in a state of emotional collapse. His lawyer asked for the hearing to be rescheduled, but the school refused, so it went on without him. He was found not responsible for sexual misconduct. But he was found responsible for using R.M.’s name in the email asking for assistance and for sending her the Facebook friend request.

The university listed Bonsu’s offense as “failure to comply with the direction of university officials.” His punishment: suspension until May 31, 2016—by which time R.M. was expected to graduate—and a permanent ban from living on campus. He was also required to get counseling to address his “decision-making.”

Bonsu decided never to return to UMass. He applied to universities in other states, but was not accepted. He spent a year studying music at a community college, unable to pursue his engineering degree. Eventually he was accepted into the engineering program at the University of Maryland at Baltimore County, for the fall semester of 2016, a year and a half after he had left UMass. He is on track to finally graduate from college in the fall of 2018. UMass denied Bonsu’s allegations against it and otherwise declined to comment. Last September, his lawsuit against the university was settled for undisclosed terms.

The way in which Bonsu’s case was handled may seem perverse, but many of the university’s actions—the interim restrictions, the full-bore investigation and adjudication even though R.M.’s own statement does not describe a sexual assault—were mandated or strongly encouraged by federal rules that govern the handling of sexual-assault allegations on campus today. These rules proliferated during Barack Obama’s administration, as did threats of sanctions if schools didn’t follow them precisely. The impulse behind them was noble and necessary—sexual assault is a scourge that should not be tolerated in any society, much less by institutions of higher learning. But taken in sum, these directives have left a mess of a system, and many unintended consequences.

On too many campuses, a new attitude about due process—and the right to be presumed innocent until proved guilty—has taken hold, one that echoes the infamous logic of Edwin Meese, who served in Ronald Reagan’s administration as attorney general, in his argument against the Miranda warning. “The thing is,” Meese said, “you don’t have many suspects who are innocent of a crime. That’s contradictory. If a person is innocent of a crime, then he is not a suspect.”

There is no doubt that until recently, many women’s claims of sexual assault were reflexively and widely disregarded—or that many still are in some quarters. (One need look no further than the many derogatory responses received by the women who came forward last year to accuse then-candidate Donald Trump of sexual violations.) Action to redress that problem was—and is—fully warranted. But many of the remedies that have been pushed on campus in recent years are unjust to men, infantilize women, and ultimately undermine the legitimacy of the fight against sexual violence.

The Trump administration has recently begun to reconsider—and in some cases, roll back—many of the rules and policies made by the Obama administration regarding campus sexual assault. It has encountered immediate skepticism and fierce pushback; given Trump’s own behavior, this reaction is not surprising.

That pushback grew more forceful in July, after Candice Jackson, the new head of the Office for Civil Rights (OCR), the arm of the Department of Education that governs the adjudication of sexual assault on campus, tossed off some made-up statistics in remarks to The New York Times that were broadly dismissive of assault. Many college administrators have said they will not alter the adjudication policies now enshrined on their campus even if recent federal guidelines are rescinded; capacious campus bureaucracies that were created at the behest of Obama’s OCR are likely to resist change.

The Trump administration has amply demonstrated that its words cannot be taken at face value, and that its policy views, in many cases, are born of ignorance or calculated to inflame. Even so, a reconsideration of the policies surrounding sexual assault on campus, and public debate about them, is necessary.

This article, the first of a three-part series, examines how the rules governing sexual-assault adjudication have changed in recent years, and why some of those changes are problematic. Part II will look at how a new—and inaccurate—science regarding key characteristics of sexual assault has biased adjudications and fostered unhealthy ideas about assault on campus. Part III considers a facet of sexual-assault adjudications that demands considerably more attention than it has received.

On april 4, 2011, the country’s more than 4,600 institutions of higher education received an unexpected letter from the Obama administration’s Department of Education. It began with the friendly salutation “Dear Colleague,” but its contents were pointed and prescriptive. The letter, and other guidance that followed, laid out a series of steps that all schools would be required to take to correct what the administration described as a collective failure to address sexual assault. Its arrival signaled the start of a campaign to eliminate what Vice President Joe Biden called an epidemic of sexual violence on campus.

The most significant requirement in the “Dear Colleague” letter was the adoption, by all colleges, in all adjudications involving allegations of sexual misconduct, of the lowest possible burden of proof, a “preponderance of evidence”—often described as just over a 50 percent likelihood of guilt. (Many universities were already using this standard, but others favored a “clear and convincing evidence” standard, requiring roughly a 75 percent likelihood of guilt. Criminal courts require proof “beyond a reasonable doubt,” the highest legal standard for finding guilt.)

Severe restrictions were placed on the ability of the accused to question the account of the accuser, in order to prevent intimidation or trauma. Eventually the administration praised a “single investigator” model, whereby the school appoints a staff member to act as detective, prosecutor, judge, and jury. The letter defined sexual violence requiring university investigation broadly to include “rape, sexual assault, sexual battery, and sexual coercion,” with no definitions provided. It also characterized sexually harassing behavior as “any unwelcome conduct of a sexual nature,” including remarks. Schools were told to investigate any reports of possible sexual misconduct, including those that came from a third party and those in which the alleged victim refused to cooperate. (Paradoxically, they were also told to defer to alleged victims’ wishes, creating no small amount of confusion among administrators.)

In total, the procedures laid out by the letter and subsequent directives triggered the creation of a parallel justice system for sexual assault, all under the aegis of Title IX, the 1972 federal law that prohibits discrimination in educational opportunities on the basis of sex. Colleges have traditionally addressed various forms of student misconduct, including sexual misconduct, through a combination of investigation, adjudication, and mediation. But they generally deferred to the criminal-justice system for the most-serious crimes. Today, colleges are required to conduct their own proceeding for every sexual allegation, even if a police investigation or criminal-justice process is under way.

The letter was merely the first of a series of administration reports and actions. In 2013, in a joint finding, the Departments of Education and Justice seemed to further expand the definition of sexually harassing behavior, noting that the standard of whether an “objectively reasonable person” of the same gender would find the actions or remarks offensive was not appropriate in judging whether a violation had occurred. (This contradicted a Supreme Court ruling that sexual harassment in a school setting must be “severe, pervasive, and objectively offensive,” and raised civil libertarians’ concerns about freedom of speech.) Some schools have since written codes that make flirtatious comments or sexual jokes punishable.

These and other measures flowed from a genuine—and justified—belief within the administration that college women faced daunting challenges in seeking justice for sexual assault, and that many colleges had not taken sexual assault seriously enough, at times even disregarding allegations. (Of course, men can be victims of sexual violations and women can be perpetrators, and government regulations regarding assault are written to be neutral to gender and sexual orientation. But it is clear that the Obama administration rightly viewed campus assault overwhelmingly as something male students do to female ones.) In a particularly egregious case, Eastern Michigan University did not publicly reveal the 2006 dorm-room sexual assault and murder of one its students, Laura Dickinson, until some 10 weeks after the fact; by then, students could no longer withdraw from school without forfeiting their tuition.

Pressing schools to improve what were sometimes haphazard procedures surrounding sexual-assault allegations; to provide clear rules about what constitutes consent and to publicize those rules on campus; and to encourage students to look out for one another—these were all worthy ends. Biden said regularly that one sexual assault is too many, and that is inarguably true.

Yet from the beginning, the administration’s efforts showed signs of overreach, and that overreach became more pronounced over time. By early 2014, the terminology used by the federal government to describe the two parties in still-unresolved sexual-assault cases had begun to change. The 2011 “Dear Colleague” letter had used the terms complainant (and sometimes alleged victim) and alleged perpetrator . But many subsequent federal documents described a complainant as a victim or a survivor, and the accused as a perpetrator.

Investigative practices also changed. OCR began keeping a public list of the schools at which it was investigating possible Title IX violations, putting them, in the words of Janet Napolitano, the former secretary of homeland security in the Obama administration and current president of the University of California system, under “a cloud of suspicion.” (OCR does not publish similar lists for other types of investigations that are still in process.) And investigations, including those begun due to a single complaint, did not result in a narrow inquiry into a given case, but into every aspect of a school’s adjudication process and general climate, and a review of all cases going back years. OCR publicly threatened the withdrawal of federal funds from schools that failed to comply with the new rules, an action that would be devastating to most schools. By 2016, according to BuzzFeed, the average investigation had been open for 963 days, up from an average in 2010 of 289 days. As of March of this year there were 311 open cases at 227 schools.

These measures made sexual assault a priority for every college president. But it’s not hard to see how they may also have encouraged bias against the accused. Several former OCR investigators and one current investigator told me the perceived message from Washington was that once an investigation into a school was opened, the investigators in the field offices were not meant to be objective fact finders. Their job was to find schools in violation of Title IX.

OCR also catalyzed the establishment of gigantic and costly campus bureaucracies. Since its beginning, Title IX has required schools to designate an employee to handle sex-discrimination issues. For decades, this was usually a faculty or staff member who had myriad other duties. But in another “Dear Colleague” letter, issued in 2015, OCR urged all institutions of higher education to hire a full-time Title IX coordinator. Large universities were encouraged to appoint multiple coordinators. These people were to be independent of other administrative offices and to report directly to the school’s senior leadership.

Harvard now has 55 Title IX coordinators (though an undisclosed number of them have additional duties). Wellesley College last year announced its first full-time coordinator to oversee sex discrimination on its all-female campus. Ozarks Technical Community College, which has no residential facilities and has had one report of sexual assault since 2013, now has a full-time Title IX coordinator.

Pushed by federal mandates, activists, fears of negative social-media campaigns, bad press, and increasingly the momentum of their own bureaucracies, schools have written codes defining sexual assault in ways that are at times troubling. Some schools recommend or require that for consent to be valid, it must be given while sober, and others rule that consent cannot be given when a student is “under the influence,” vague standards that could cover any amount of alcohol consumption. Some embrace “affirmative consent,” which, at its limit, requires that each touch, each time, be preceded by the explicit, verbal granting of permission. At times, the directives given to students about sex veer squarely into the absurd: A training video on sexual consent for incoming students at Brown University, for instance, included this stipulation, among many others: “Consent is knowing that my partner wants me just as much as I want them.”

As Jeannie Suk Gersen and her husband and Harvard Law School colleague, Jacob Gersen, wrote last year in a California Law Review article, “The Sex Bureaucracy,” the “conduct classified as illegal” on college campuses “has grown substantially, and indeed, it plausibly covers almost all sex students are having today.”

Due process is the constitutional guarantee of equal treatment under the law and fundamental fairness in legal proceedings. The late Supreme Court Justice Abe Fortas wrote in 1967 that it is “the primary and indispensable foundation of individual freedom,” and the high court has ruled that due process requires that laws not be “unreasonable, arbitrary, or capricious.” But many campus proceedings seem to fit that description. For example, it is not unusual for a male student to be investigated and adjudicated for sexual assault, yet to never receive specific, written notice of the allegations against him. The Foundation for Individual Rights in Education, a civil-liberties group, found in a report released on September 5 analyzing due-process procedures at the country’s top-ranked colleges and universities that about half fail to offer this minimal protection.

To ensure the safety of alleged victims of sexual assault, the federal government requires “interim measures”—accommodations that administrators must offer the complainant before any finding of responsibility, including steps to ensure that she never has to encounter the accused, as in the case of Kwadwo Bonsu. Common interim measures include moving the accused from his dormitory, limiting the places he can go on campus, forcing him to change classes, and barring him from activities. On small campuses, this can mean his life is completely circumscribed. Sometimes he is banned from campus altogether while he awaits the results of an investigation.

Interim measures against the accused make sense in some circumstances, depending on the severity of the alleged incident, the apparent strength of the case, and other matters, but they are too often applied bluntly and reflexively. And even if the accused is cleared during an adjudication, schools can issue a standing no-contact order between him and the accuser. In a 2015 article for the Harvard Law Review, Janet Halley, a Harvard law professor, describes a case at an Oregon college in which a male student was investigated and told to stay away from a female student, resulting in the loss of his campus job and a move from his dorm. He didn’t know why he was being investigated, but it turned out he resembled a man who had raped the female student “months before and thousands of miles away.” He was found “innocent of any sexual misconduct,” but the no-contact order was not lifted. “When the duty to prevent a ‘sexually hostile environment’ is interpreted this expansively,” Halley wrote, indifference to the restrained person’s innocence will tend to follow. But “ending or hobbling someone’s access to education should be much harder than that.”

The preponderance-of-evidence standard demanded by OCR requires schools to make life-altering decisions even when there is great doubt. Penn State, for instance, instructs its adjudicators to find the accused guilty if they deem there is a 50.01 percent likelihood that a violation occurred, adding that this means they “may have considerable reservation” about their decision. Last year, the American Association of University Professors called for universities to be able to return to using the “clear and convincing” standard that many had used previously in Title IX cases. This year, the American College of Trial Lawyers similarly called for the standard of proof in Title IX proceedings to be clear and convincing evidence. Groups of professors at Harvard Law School and the University of Pennsylvania Law School have each released open letters expressing their concern that OCR has undermined due process and justice.

Supporters of the preponderance standard, including Catherine Lhamon, the previous head of OCR, argue that preponderance is the standard that courts say to use in administrative and civil proceedings—and is hence fitting for campus adjudication. OCR guidance emphasizes the difference between a Title IX investigation and a criminal case, noting that the former “will never result in incarceration,” thus “the same procedural protections and legal standards are not required.” And the preponderance-of-evidence standard is held to be appropriate by the Supreme Court in civil litigation involving discrimination. But the Court has also ruled that the clear-and-convincing standard is appropriate for those civil proceedings where “particularly important individual interests or rights are at stake.”

What’s more, even in civil court cases, defendants have myriad protections not typically found in Title IX proceedings, such as receipt of a specific, written complaint; clear rules of evidence; knowledge of the testimony of adverse witnesses; and the rights to discovery, cross-examination, and the calling of expert witnesses. The absence of options and protections such as discovery and cross-examination sometimes works against complainants, too—it’s a bad system. But especially in a context where the standard for finding guilt is so low, it is particularly unjust to the accused. The 2011 “Dear Colleague” letter said that the basic right to question one’s accuser should be severely limited. To accede to OCR’s guidance, some schools ask the accused to assemble a list of questions for the accuser that campus officials can ask on his behalf, at their discretion. A number of young men have asserted in lawsuits that their questions were ignored.

In a 2014 Yale Law & Policy Review article, Janet Napolitano asked, “Should there be any recognition of an accused student’s rights against self-incrimination in the administrative investigation?” The answer has been no in recent years. If the accused declines to answer questions, he can be expelled. But whatever he says in an administrative hearing can be turned over to law-enforcement authorities and used against him in a criminal proceeding.

Geoffrey stone, a professor at the University of Chicago Law School, and its former dean, told me he believes that the integrity of the legal system requires rules designed to prevent innocent people from being punished, and that these same principles should apply on campus. But he is concerned that severe sanctions are being imposed without the necessary protections for the accused. As he wrote in HuffPost, “For a college or university to expel a student for sexual assault is a matter of grave consequence both for the institution and for the student. Such an expulsion will haunt the student for the rest of his days, especially in the world of the Internet. Indeed, it may well destroy his chosen career prospects.”

Stone also wrote that while campus codes of conduct say sexual assault is a Title IX violation, there is a widespread failure to clearly define sexual assault. Jeannie Suk Gersen and Jacob Gersen, in “The Sex Bureaucracy,” for example, document the frequent conflation on campus of the terms nonconsensual sex and unwanted sex, and explain why this is so concerning: “Many people, regardless of gender and sexual orientation, have consensual sex that is unwanted. Sometimes it is partially unwanted, not fully wanted, or both wanted and unwanted at the same time … Ambivalence—simultaneously wanting and not wanting, desire and revulsion—is endemic to human sexuality.”

Sometimes, of course, there is no ambiguity, as when a woman says no, or sends visible, consistent physical signals that she is not consenting to a sexual act. But many schools no longer require women to say or signal no in order for an encounter to be considered nonconsensual. Affirmative-consent rules, particularly when written or interpreted expansively, do that directly; in California, Connecticut, and New York, affirmative-consent codes for college students have been signed into law. So do policies that treat women who have been drinking—but who are not by any objective standard incapacitated—as unable to give consent.

The problem with both types of policies is that they are intrusive and impractical. Couples are especially unlikely to adhere to contract-negotiation-style bedroom interactions (and it is no small intrusion on privacy to require them to do so). The proscription on drinking before sex is certain to be widely ignored; sexually inexperienced students (and even experienced ones) often drink in order to lower their inhibitions. And yet ignoring these rules puts men in great jeopardy should their partner later reconsider what seemed to have been a consensual encounter.

In the world outside campus, people who are merely intoxicated, not incapacitated, can legally consent to sex, even if they make poor or regrettable decisions. In many states, sex with an incapacitated partner is a crime when the accused knows, or reasonably should know, about the incapacity and intends to act without consent. Recently, some schools have adopted clearer standards for incapacitation, including the requirement that the accused should reasonably know about the incapacity in order for consent to be invalidated. But on many campuses, no such knowledge or intent is required for an adjudication to determine that a violation has occurred.

Acentral tenet of advocates seeking greater accountability for sexual assault is that the complainant is virtually always the one telling the truth. As a 2014 White House report, “Rape and Sexual Assault: A Renewed Call to Action,” stated, “Only 2–10 percent of reported rapes are false.” Campus materials aimed at students make similar assertions.

But as Michelle J. Anderson, the president of Brooklyn College and a scholar of rape law, acknowledged in a 2004 paper in the Boston University Law Review, “There is no good empirical data on false rape complaints either historically or currently.” The data have not improved since that time. In a 2015 working paper, Lieutenant Colonel Reggie Yager, a U.S. Air Force judge advocate who has defended men accused of sexual assault, took a comprehensive look at the research on the incidence of false rape reports, and concluded that the studies confirming the overwhelming veracity of accusers are methodologically unsound.

For instance, consider Yager’s analysis of a 2010 study titled “False Allegations of Sexual Assault: An Analysis of Ten Years of Reported Cases.” The study is one of the few to examine false reports with specific reference to campus allegations, and is frequently cited by government officials and activists. David Lisak, a former associate professor of psychology at UMass Boston and a prominent consultant on campus sexual assault, is the lead author; when he and his co-authors reviewed the reports of sexual assault at one northeastern university to determine what percentage were false, they concluded that the figure was not quite 6 percent. “Over 90 percent of reports of rape are not fabrications. They’re not false allegations,” he said in a videotaped interview describing the research.

Yager writes, however, that about 45 percent of the cases Lisak reviewed did not proceed, because there was insufficient evidence, or the complainant withdrew from the process or couldn’t identify the perpetrator, or the allegation did not rise to the level of a sexual assault. In other words, no one could possibly determine whether these claims were true or false.

“Policy is being driven,” Yager wrote in his analysis, by the idea “that false allegations are exceedingly rare.” But we simply don’t know how rare they are. What’s more, no legal or moral system purporting to be just can make presumptions about individual cases based on statistics. For many years, feminist activists have said that the legal system and culture tend to prejudge assault claims, with an inclination toward believing men over women, accused over accuser. They have rightly pointed out the deep injustice of that bias. But it is also unjust to be biased against the accused.

A troubling paradox within the activist community, and increasingly among administrators, is the belief that while women who make a complaint should be given the strong benefit of the doubt, women who deny they were assaulted should not necessarily be believed. The rules at many schools, created in response to federal directives, require employees (except those covered by confidentiality protections, such as health-care providers) to report to the Title IX office any instance of possible sexual assault or harassment of which they become aware. One result is that offhand remarks, rumors, and the inferences drawn by observers of ambiguous interactions can trigger investigations; sometimes these are not halted even when the alleged victim denies that an assault occurred.

A recent case at the University of Southern California that resulted in the expulsion of Matt Boermeester, 23, the kicker for the school’s football team, illustrates this. In January of this year, one neighbor thought he saw Boermeester hurting his girlfriend of more than a year, Zoe Katz, 22, a top USC tennis player. The neighbor, also a USC student, told another USC student, who told his father, a USC tennis coach. The coach was a mandatory reporter, and he told the Title IX office. A months-long investigation was launched, Boermeester was put on immediate suspension, and a no-contact order was placed on the couple (which they ignored when off-campus). Eventually USC found Boermeester responsible for violating the school’s student code of conduct, which prohibits intimate-partner violence, as well as for violating the no-contact order. He was expelled.

In a statement issued to the Los Angeles Times through a lawyer, Katz said that on the night in question the two were playing around and that nothing untoward happened. She wrote that Boermeester “has been falsely accused of conduct involving me” and that he “did nothing improper against me, ever. I would not stand for it. Nor will I stand for watching him be maligned and lied about.” She said the investigation went on despite her adamant objection; that Title IX administrators treated her in a “dismissive and demeaning” way and told her she was a “battered” woman; and that during “repeated interrogations,” her words were “misrepresented, misquoted and taken out of context.” Boermeester recently filed suit against the school seeking to have his expulsion overturned. In papers filed in response to the suit, USC has said that it stands by its investigation and has asked the court to deny Boermeester relief, citing the completeness of the university’s investigation and the due process afforded him during the school’s administrative proceeding. The school wrote that Katz “initially confirmed” the version of events supplied by the neighbor and other witnesses, that she asked for the no-contact order, and that she texted that she was worried Boermeester would find out she had spoken with the Title IX investigator. USC said her “attempts to protect Petitioner were consistent with a recognized pattern of recanting in intimate partner violence that may be motivated by love or fear of reprisal.” Katz called the university’s statements “ludicrous,” again denying its allegations, and noted that she and Boermeester are still dating.

There are no national data that let us know the prevalence of third-party reports, but they appear to be a significant source of allegations. The University of Michigan’s most recent “Student Sexual Misconduct Annual Report” says that the school’s Office for Institutional Equity “often receives complaints about incidents from third parties.” Yale releases a semiannual report of all possible sexual-assault and harassment complaints. Its report for the latter half of 2015 included a new category: third-party reports in which the alleged victim, after being contacted by the Title IX office, refused to cooperate. These cases made up more than 30 percent of all undergraduate assault allegations.

Mark Hathaway, a California attorney who has dealt with several no-complainant complaints, says that the zeal with which these complaints are sometimes handled can be wounding psychologically to both the accused and his partner. Hathaway represented a young man who was in bed with his girlfriend in her dorm room. They were fooling around but not having intercourse. In the next bed was the girlfriend’s roommate and a male student. They thought that the girlfriend had had too much to drink to be able to consent to sexual activity. They mentioned their concern to a resident adviser, who was obligated to report it to the Title IX office, which then opened an investigation. “The girl says nothing happened; it was all consensual,” Hathaway told me. “But the school still goes forward.”

Because the school considered her a witness, the girlfriend was compelled to answer questions; had she refused to cooperate, she could have been disciplined. (If she had been the complainant, she would have had the right to decline.) Hathaway told me she “was in tears because she was required to explain to total strangers intimate sexual details.” The school concluded, despite her statements to the contrary, that she couldn’t have consented to the sexual encounter, and suspended her boyfriend for a semester. He was also required to attend eight sessions with a therapist on the topic of alcohol and sexual relationships.

While police and prosecutors, after evaluating an on-campus or off-campus complaint, can make a discretionary decision about whether to pursue further action, OCR guidance makes clear that school administrators are not supposed to render such judgment. In response to any complaint, including those by third parties, they are supposed to investigate. Hathaway says of campus administrators, “There is a machine that needs to be fed, and they are part of the machine.”

University administrators are in an unenviable place today. Students arriving on campus are, by many measures, less socially developed than were those of previous generations. They have dated less and spent less time hanging out with one another without adults present. They also have less experience with alcohol, but suddenly encounter an environment in which binge drinking is a norm. Without a doubt, these characteristics make many students particularly vulnerable to assault. They also create an environment in which sexual experimentation followed by shame or regret is common, as is poor communication by both parties.

Candice Jackson may have intended to say something like this in July. If so, she bungled and dramatically overstated her point, and had to apologize for being flippant. (“Ninety percent” of sexual-assault claims, she had said, were the result of drunken hookups and bad breakups, reported later as sexual assaults.) But the actions she has taken or publicly considered taking so far—she has scaled back investigations to initially  consider only the complaint that was actually made; she has indicated  that she may cease to publicly list the universities under Title IX investigation—are sensible. OCR is considering other measures, some of which may be announced as soon as September 7, in a speech on Title IX by Betsy DeVos, the secretary of education. Any reforms OCR eventually makes should receive a fair public hearing.

It’s likely they will not. Since Trump’s election, many college presidents and administrators have promised that they will not willingly change policies they now have in place. The president of California State University at Northridge, Dianne Harrison, wrote in an op-ed in February that she hoped DeVos would uphold the 2011 “Dear Colleague” letter and added, “This is not something from which we or any campus should retreat, no matter what the U.S. Department of Education under the new administration may propose.”

Harrison won’t have to retreat on preponderance. That standard is already part of a California law governing campus adjudications; preponderance is also a requirement under an Illinois law soon to go into effect. Prescient activists, fearing that federal guidance might be overturned, have already begun lobbying state legislatures to enshrine as law much of the Obama administration’s Title IX sexual-assault guidance—California and Massachusetts are considering such bills.

And while some college administrators express concern about due process, that concern does not always appear to be top of mind, even though lawsuits are piling up. Some 170 suits about unfair treatment have been filed by accused students over the past several years. As K. C. Johnson, the co-author, with Stuart Taylor Jr., of the recent book The Campus Rape Frenzy, notes, at least 60 have so far resulted in findings favorable to them. The National Center for Higher Education Risk Management, one of the country’s largest higher-education law firms and consulting practices specializing in Title IX, recently released a white paper, “Due Process and the Sex Police.” It noted that higher-education institutions are “losing case after case in federal court on what should be very basic due process protections. Never before have colleges been losing more cases than they are winning, but that is the trend as we write this.” The paper warned that at some colleges, “overzealousness to impose sexual correctness”—including the idea that anything less than “utopian” sex is punishable—“is causing a backlash that is going to set back the entire consent movement.” Even so, in a February op-ed, Carol Quillen, the president of Davidson College, wrote that while “criminal justice is founded on due process and the possibility of innocence,” ideals she valued, these goals were inherently in conflict with other important goals. “Nothing about due process says to a rape survivor, ‘I believe you,’” she wrote.

Over the past several years of reporting and writing on this subject, the people I’ve spoken with who deal closely with campus sexual assault—school administrators, lawyers, higher-education-policy consultants, even investigators for the Office for Civil Rights—do not typically describe campuses filled with sociopathic predators. They mostly paint a picture of students, many of them freshmen, who begin a late-night consensual sexual encounter, well lubricated by alcohol, and end up with divergent views of what happened.

Lee Burdette Williams, who from 2009 to 2014 was the vice president for student affairs and dean of students at Wheaton College, in Massachusetts, and before that was the dean of students at the University of Connecticut, spent some of her final years in academia overseeing such tricky cases. She told me that sexual assaults do, of course, happen, that allegations must always be handled seriously and with great care, and that she herself oversaw the expulsion of students who were found to be violators. But she also said that many of the cases she dealt with—especially recently—involved a female student who’d had a sexual encounter that had left her unsettled but that did not fit the definition of a crime.

She told me that one reason so many cases involved first-year students was that these students were particularly “inexperienced and clueless about how to talk to each other about sex.” Many of them didn’t know what they wanted or didn’t want, and many of them experimented, then later felt embarrassed or maltreated. Parsing allegations, considering intent, holding violators accountable, providing guidance and counseling to one or both parties when no violation could be established—these are crucial duties of administrators, and they require judgment and discretion. Williams came to believe that in recent years, this discretion—and the duty to dispassionately weigh the rights of both parties in an assault allegation—has been harmfully eroded. In 2014, she left her career to become a higher-education consultant and writer. She wrote a farewell essay in Inside Higher Education, stating that while she used to think of herself as “Dean of All Students,” her job had become “Dean of Sexual Assault.”

At its worst, Title IX is now a cudgel with which the government and school administrators enforce sex rules too bluntly, and in ways that invite abuse. That’s an uncomfortable statement. It does not cancel or diminish other uncomfortable statements: Women (and men) are assaulted on campus, those assaults can be devastating, and the victims do not always receive justice when they come forward. But we have arrived at a point at which schools investigate, adjudicate, and punish the kind of murky, ambiguous sexual encounters that trained law-enforcement officials are unable to sort out—and also at a point at which the definition of sexual misconduct on many campuses has expanded beyond reason.

Institutions of higher education must protect their students from crimes and physical harm. They should also model for their students how an open society functions, and how necessary it is to protect the civil liberties of everyone.

We want to hear what you think about this article. Submit a letter to the editor or write to letters@theatlantic.com.

EMILY YOFFE is a contributing editor at The Atlantic.

SEX CRIMES

It Was a Wild and Crazy Summer of Criminalizing Campus Sex

"In an effort to address sexual assault, college campuses are on the verge of entering into an Orwellian nightmare."

ROBBY SOAVE |

(Zenon Evans / Reason)

Sex

Students returning to class this fall, consider yourselves warned: This was the summer that federal regulators, state lawmakers, and college administrators got together for a threesome—incidentally criminalizing campus sex in the process.

The debate over campus sexual assault—how much it happens, and how to handle it when it does—has been heating up for a while now thanks to increasing federal intervention, but the latest round of action kicked off at the end of spring, when the Office of Civil Rights at the Department of Education (OCR) identified 55 colleges under investigation for failing to report and handle rape allegations. The message to colleges from the federal government was do something, or else.

Colleges are definitely responding to the pressure. Consider Occidental College, whichpursued a rape case against a male student for having drunken sex with a female student. Investigators determined that the encounter was consensual, but administrators pursued sanctions anyway, insisting that the female student's consent was invalidated because she had been drinking. The argument makes no sense—if all drunken sex constitutes rape, then both the accused and the accuser are equally guilty. Nevertheless, the male student was expelled.

Hashing out which person is the initiator of sex and which person is the consenter can be tricky from a legal standpoint. College hookups happen under the influence of substances that impair judgments, and what takes place between the sheets is inherently shrouded from public scrutiny.

But that didn't stop the California legislature this summer from trying anyway. Responding to the federal government's call to do something, or else, state lawmakersapproved SB 967, a bill that would force state universities to establish a stricter definition of consensual sex: one that requires the initiator to acquire "unambiguous, informed, freely-given, and voluntary" permission.

That part may not sound so bad—sex, after all, should be absolutely consensual—but forcing college administrators to play the role of judge, jury, and career executioner for the accused students in these cases carries a whole host of problems.

The big one is that many colleges don't extend due process rights to students involved in the process. The accused are frequently denied legal counsel, the right to call their own witnesses or cross-examine the evidence against them, and they are convicted on the "preponderance of the evidence" standard, which only requires administrators to be 50.00001 percent sure of themselves. This is the standard the federal government insists upon and California's bill requires. Students found guilty under that standard are often suspended for years or expelled outright, meaning that whatever money they spent on tuition is wasted. And since other colleges are loathe to admit anyone with a campus sexual assault violation on his record, conviction in a campus court can end a person's college career forever.

Determining whether a student is guilty—and whether he deserves to have his future ruined by a conviction—is a heavy responsibility, and one college bureaucracies are in no way, shape, or form qualified to take on. But they largely have no choice: OCR has repeatedly made clear that it considers campus sexual assault to be an epidemic requiring a firmer hand from the universities. Universities that do not implement DOJ "suggestions" could face a loss of funds or federal lawsuits.

Continuing to police rape without respect for due process is also generating lawsuits, however. In a recent case, University of Cincinnati student Ethan Peloe was convicted of rape by the campus judiciary, even though the police who had investigated his case believed him to be innocent and opted not to charge him with any crime. Now Peloe is suing the university for gender discrimination. The judiciary proceedings, as outlined in his lawsuit, read like a trial from a dystopian novel: Adjudicators repeatedly refused to let Peloe present evidence that he believed would exonerate him—including "results of a rape kit examination, security camera footage, and witnesses' accounts"—and lied to him about whether they had consulted investigators. In fact, as the lawsuit claims, campus police officers avoided the trial out of fear that the university would retaliate against them for helping Peloe.

Caroline Kitchens, a senior research associate at the American Enterprise Institute who frequently writes about the travesty of campus sexual assault trials, told Reason that colleges, at the federal government's insistence, are codifying "a sexual double standard whereby all men are presumed rapists."

"In an effort to address sexual assault, college campuses are on the verge of entering into an Orwellian nightmare in which all sexual encounters are policed and students accused of misconduct are guilty until proven innocent," she said.

Yet the federal government continues to nod colleges in that direction. A pair of billsintroduced in the U.S. Senate just before August spell out all the services to which victims are entitled, but say nothing about due process for the accused. Sen. Barbara Boxer's (D-Calif.) bill, for instance, would only require colleges to assign "advocates" to the accusers—the accused would have no guarantee of representation.

These developments have largely been applauded by feminist writers at places likeJezebel and Slate. But not all self-described feminists are on board.

"I'm a liberal, I'm a Democrat," Sherry Warner-Seefeld, an advocate for due process in higher education, told Reason. "I'm a feminist from way back, and I fought for gender equity. That did include women's equity at the time, but I still have the same feelings about gender equity today, and in this fight, I'm concerned about male equity."

Warner-Seefeld is president of Families Advocating for Campus Equality, a new organization that wants to provide support to accused students while advocating a reassertion of basic due process rights in campus sexual assault proceedings. She started the organization with two other women. "We are literally three moms," she said.

They are also mothers to boys falsely accused of rape, and they have seen firsthand what comes of making rape an academic matter: Male students face kangaroo courts and outcomes preordained by federal mandates. It's not right, said Warner-Seefeld.

"We are trying very, very hard to stay that middle ground and say campus equality and due process belongs to both genders," she said.

Whether FACE and other civil libertarian groups can turn the tide remains to be seen. But for now, the summer when the government criminalized campus sex is likely to give way to an autumn when everyone will sue everyone else over what happens behind the closed doors of college dorm rooms.

NEXT: Ukraine: Russia Is Invading Right Now

ROBBY SOAVE is an associate editor at Reason.

SEX CRIMESBARBARA BOXERCAMPUS FREE SPEECH

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1. MegaloMonocle

August.27.2014 at 4:36 pm

Pet peeve time:

Its not “Verbal or Written Consent”. Written consent is a form of verbal consent. What you mean is “Written or Oral Consent.”

Carry on.

- Riven

August.27.2014 at 4:41 pm

You are technically correct–the best kind of correct.

- MegaloMonocle

August.27.2014 at 4:48 pm

Yeah, I do enjoy yanking other attorneys chains on this one.

Them: “We have a verbal agreement!”

Me: “OK, send me a copy.”

Them: “You idiot, I said it was a verbal agreement!”

Me: “Right. That’s what I thought you said. Did you mean its an oral agreement?”

Them: “Fuck you, asshole.”

Me: [smiles unpleasantly]

- Rhywun

August.27.2014 at 4:50 pm

My dictionary gives “oral” as a synonym of “verbal”. Sorry.

- avocats

August.27.2014 at 6:46 pm

Your dictionary is defective. But then so are most. Verbal means “in words.” Spoken or written or signed.

- avocats

August.27.2014 at 6:47 pm

But then, use of the word “oral” on campuses is likely to lead to trouble.

- Rhywun

August.27.2014 at 6:53 pm

Yep, it means that too. But many words have multiple meanings – that’s just how language is.

- MegaloMonocle

August.27.2014 at 7:03 pm

Indeed. But when working in the legal arena, precision is important.

There are such things as nonverbal agreements, generally referred to as “implied” agreements.

It matters, a lot, whether an agreement is nonverbal/implied, oral, or written. Don’t use ambiguous terms when talking about things like consent or contracts – it will only lead to trouble.

- Rhywun

August.27.2014 at 7:35 pm

Fair enough. I don’t do “law”.

- mad.casual

August.28.2014 at 10:29 am

Your dictionary is defective.

Or it’s a fully functional dictionary with poorly executed thesaurus features.

- Suicidy

August.27.2014 at 7:00 pm

My. Dictionary gives additional meanings for ‘oral’.

- timbo

August.29.2014 at 4:16 pm

While getting correct; What is gender equity? Can you be less than 100% female or 100% male.

I think there exists a war on women to not allow them to have drunken sex.

16. Len Bias

August.27.2014 at 5:06 pm

On the one hand, I’m glad I’m out of college and don’t have to deal with this shit.

On the other hand, I do intend to have children one day, and shudder to think what they’ll deal with when they go to college.

Seriously, though, if you call virtually anything a male does rape, then it trivializes actual rape. Is this the outcome people want?

- FYTW

August.27.2014 at 6:31 pm

Seriously, though, if you call virtually anything a male does rape, then it trivializes actual rape. Is this the outcome people want?

I don’t think they care. I think they think that their long-term project of allowing women to exist in a state of infantilized victimhood, where they’re never responsible for the consequences of their own poor decisionmaking and thus never have any cause to feel guilt, shame, or regret, is more important than abstract concerns like taking rape and sexual assault seriously.

- Len Bias

August.27.2014 at 7:02 pm

I agree, especially with the uproar over the drug-detecting fingernail polish a few days ago. Any attempt to empower women is seen as suspect and an attempt to blame them.

- MegaloMonocle

August.27.2014 at 7:04 pm

If they have to trivialize rape to criminalize men, well, that’s a price they’re willing for other people to pay.

- Alec Leamas

August.28.2014 at 10:52 am

I think you’re correct insofar as feminists don’t care about the trauma of women who have been and will be raped. As a society we do a pretty good job of tracking down, convicting, and seriously punishing men who rape women where there is no reasonable doubt regarding the victim’s consent and whatnot. Of course, this deprives feminists of a complaint, and we just can’t have that.

The push on college campuses amounts to prohibiting and punishing the way that most if not all people interact and have heterosexual sex. I simply don’t know anyone of any political persuasion who solicits or gives bone fide, unambiguous “affirmative consent” (which, recall, can be immediately and abruptly withdrawn at the election of the women at any time*) at every juncture in a sexual interlude. At first this seems like an oversight, or perhaps overzealousness on the part of feminists, however it is not. People on campus or off are simply not going to stop having heterosexual sex, but virtually all acts of heterosexual sex will be prohibited ? therefore women will always have powerful leverage to capriciously report an otherwise lawful and unobjectionable encounter in the past, after which the man in the encounter will be presumed guilty and forced to submit to a kangaroo court to give the gloss of process to his ruin on the strength of one scorned woman’s say-so. It would be like living in the Village of the Damned for four years.

- Alec Leamas

August.28.2014 at 10:55 am

* On multiple occasions I have had discussions with feminists who believe that a woman can withdraw consent to intercourse mid-thrust, and any and all contact from the time that the “stop” leaves a woman’s lips (or, even more ominous, non-verbal withdraw is made) constitutes rape no different than the scary man jumping out from behind the bushes with a knife and forcing himself on the unsuspecting coed on her way to the Library.

- Bean Counter

August.27.2014 at 6:34 pm

Yeah, pretty much if by “people” you mean the DOJ and college bureaucrats.

- Len Bias

August.27.2014 at 7:04 pm

Yeah, should’ve qualified what I meant by people. For some people, it is absolutely what they want.

- ant1sthenes

August.27.2014 at 9:04 pm

Yes? Almost none of these fuckwits have actually been raped. They’re narcissists who crave the sympathy that actual rape victims get, and think that if they define rape down, they can get some of that sympathy for themselves to find some emotional validation in their worthless, empty lives.

Yes, it won’t turn out like that if they actually do succeed in defining rape down. But we’re talking about people who think that giving women tools to thwart rapists is terrible and supportive of rape, and that the most reasonable and appropriate solution to the problem of rape is to simply make sure that every single person (well, man, in their view) abstains from rape, which can be done with “teaching”. You know, morons.

- mad.casual

August.28.2014 at 10:55 am

On the other hand, I do intend to have children one day, and shudder to think what they’ll deal with when they go to college.

I have kids, not college age yet, and worry about the same thing.

However, due to the rising standards of public education and the haemorrhaging of public money on college education administration. I also see the value of college education dropping and demand for various niche skills being exceptional.

Additionally, while I may not like the fact that illegal immigrants are breaking the law by coming to this country, I love the fact that they are literally eroding the existing bureaucracy and only appear to be thriving as a (sub)culture.

As long as my kids can do the standard “adult basic” stuff; weld, shoot, change oil, frame a house, balance their accounts and calculate interest (by hand, with a spreadsheet, and with a computer but no spreadsheet), etc., etc. I’ll be more than content.

I think attending college is one of those flawed cultural imperatives that has had its day. It’s a little like requiring every horse be trained to race in the triple crown shortly before the invention of the automobile.

29. XM

August.27.2014 at 5:29 pm

Are kids in college that good looking, or are they just desperate for sex?

I was in college (earning graduate degree) as recently as 2009. Most women were either married or didn’t look like girls in the CW shows.

- Bean Counter

August.27.2014 at 6:36 pm

A 19 year old kid on his own for the first time and under self-imposed pressure to live up to all the stories he’s heard about campus sex will hit on anything with a crease in the middle. Actually, most 19 year old kids will hit on anything with a crease in the middle anyway.

- FYTW

August.27.2014 at 6:57 pm

The closest supermarket to my home also happens to serve a nearby university. Go in there any Friday or Saturday night, and while you’ll see your fair share of three-baggers and skanks, there’s no shortage of eminently fuckable coeds.

33. avocats

August.27.2014 at 6:43 pm

Funny op-ed piece today in WSJ on going back to college. Barely scratched the surface on these issues. Seems to me that colleges should be handing out Antabuse and/or chemical castration drugs for all males on campus and Antabuse for all women.

34. craiginmass

August.27.2014 at 8:03 pm

It’s very sad when “reason” constantly stoops to the idea that they can pick up young votes by how much they “like” young sex acts……even though anyone in their right mind knows that the candidates the Kochs, Reason and Cato support mostly (80% plus) are spending their time making certain women have no access to birth control or family planning.

You won’t find articles here with honest titles like “Kock candidates want to make female college students have children and raise them to adulthood because they like sex”…..

- ant1sthenes

August.27.2014 at 9:12 pm

Yes, they are trying their damndest to ensure that no woman has $50 to spare in her budget every month.

- Tony

August.27.2014 at 10:27 pm

That, and making sure they have to spend it anyway.

- Libertarius

August.27.2014 at 11:57 pm

So it’s libertarians and the right who think people exist in order to be looted by the state, and thus seek to constantly raise their taxes?

You’re gay and a liar.

- Freddy B

August.28.2014 at 5:38 am

I think the inference was that having a product (rape drug detecting nail polish) voluntarily commercially available by a free capitalist market is just like stealing.

- Freddy B

August.27.2014 at 9:15 pm

I was tempted to feed a troll, but seeing not even a vague reference to the facts or thesis of the article I thought better of it.

- JWW

August.28.2014 at 8:35 am

I really want reason to create an animated GIF where Captain Kirk shouting Koooooooooooooch!

🙂

- Otisjay

August.28.2014 at 10:57 am

Bad troll is bad

3/10 wasn’t even upset.

- Alec Leamas

August.28.2014 at 11:11 am

“Access.” I don’t think it means what you think it means.

Now stop denying me “access” to a Maine lobster for lunch.

45. Mickey Rat

August.27.2014 at 8:04 pm

“…the latest round of action kicked off at the end of spring, when the Office of Civil Rights at the Department of Education (OCR) identified 55 colleges under investigation for failing to report and handle rape allegations.”

Perhaps the premise that colleges should have much business in handling rape allegations is faulty? That maybe they are not very well equipped to handle such matters.

46. Suthenboy

August.27.2014 at 9:01 pm

“…college campuses are ON THE VERGE of entering into an Orwellian nightmare.”

Bullshit.

47. Freddy B

August.27.2014 at 9:14 pm

I mentioned this on another thread with all the ingenuity going into useful apps, there should be a college rating app for college age kids so they can exchange information on abusive and speech strangling colleges. Let the students start posting reviews and making commentary specifically on college rules. Perhaps have a group of attorneys rate free speech and other basic rights.

These kids are being slowly boiled, time for them to hop out of the pot.

48. John C. Randolph

August.27.2014 at 9:49 pm

I’m just waiting for the first time some jock gets drunk, has sex with a sober stalker, and then sues her for raping him.

-jcr

49. Tony

August.27.2014 at 10:25 pm

If mere sex while under the influence of alcohol is rape then I raped/was raped in college more times than I had sex. I must be a psychopath and/or PTSD case.

- Mickey Rat

August.28.2014 at 6:59 am

Yes.

- Otisjay

August.28.2014 at 11:01 am

if you look on tumbler, That is rape to them.

- Alec Leamas

August.28.2014 at 11:28 am

The new saying is “too drunk to drive, too drunk to fuck” although this approximates absolutely no legal standard for the crime of rape/sexual assault now in existence. The benefit to feminists in teaching women these extralegal definitions of rape is that it beefs up the polling numbers of women who claim to have been raped, and makes women feel like victims and allied with feminism rather than simply drunk and loose.

54. cavalier973

August.28.2014 at 12:25 am

For some reason, I’m reminded of this MST3K episode: The Violent Years

55. WillMG

August.28.2014 at 12:39 am

Remember when colleges and the left loved sexual liberation and weren’t more prudish than the religious right? I certainly don’t.

- Freddy B

August.28.2014 at 5:44 am

In my lifetime progressives have always been the party of sex is rape. But then everything is twisted in their ideology, theft is sharing, not paying for others BC is denying BC, Militarized police are good, but the things they do are bad. It’s all nonsense.

- craiginmass

August.28.2014 at 11:04 am

Right! Because, after all, we lefties forced the Slave States like MO to become more segregated and to militarize their police! We lefties asked for all the wars and the military/security state buildup.

What is it- backwards bizzarro day again?

Repeat after me…..”the right and the neocons have been the primary backers of wars and violence and the security state since about 1965″

Heck, remember, Goldwater wanted to drop nukes in Vietnam. Nixon almost followed through with it…..

At least we have had the discussion about war on the left – on the right it’s a given. Stand before the flag and the cross and kill for God….

- Alec Leamas

August.28.2014 at 11:18 am

Were you in a coma circa 2000 through 2003? The Democrats clamored over one another to be seen voting for both wars prosecuted by the “neocons.” Numbered among them are the current Secretary of State, last Secretary of State and putative Democratic nominee for President, and current Vice President and fallback choice of Democratic nominee for President.

That they were all venal characters who denounced their votes on the discredited pretext that they were duped into their votes rather than chasing Howard Dean to the Left in 2004 is not a sufficient excuse.

- cavalier973

August.28.2014 at 4:38 pm

We lefties asked for all the wars and the military/security state buildup.

*cough*LBJ*cough*

61. Marktaylor

August.28.2014 at 12:45 am

By the definitions of consent going around these days I’m not sure I’ve ever had consensual sex. I’m sure people know when they write these laws they’re complete nonsense, but they still pretend they aren’t cuz tThey want to say they’re tough on rape or something.

62. Kona

August.28.2014 at 11:24 am

Rape is a crime. I’d like the real police to be included not the PC police.

- Alec Leamas

August.28.2014 at 11:26 am

Real police, a presumption of evidence, right to confront witnesses, and the jury system don’t yield the “correct” result.

65. Agile Cyborg

August.28.2014 at 11:45 am

One of you bright attorney types around here needs to create a ‘legitimate’ fuck contract that is 100% legal and protects fuckers from rape liability. Reason should post the contract once they vet it.

This contract shall be printed on t-shirts or a dual-fold biz cards which can then be signed in the heat of consent. Keep multiples copies on board for orgy nights.

I’m not jesting. At all. Protect yourselves out there in the big world full of STD’s and rape-claimers, boys.

Think condoms and contracts. Sex is moving into the Age of Ironclad.

- Alec Leamas

August.28.2014 at 11:53 am

It wouldn’t matter because per the feminists who are running this racket, consent can be withdrawn at any point and any contact thereafter constitutes rape/sexual assault. “I signed it, but then changed my mind” is enough for the administrators to pin their ears back and nail a scalp to the wall.

- Agile Cyborg

August.28.2014 at 12:09 pm

If a woman signs a consent-to-be-penetrated contract she’d be laughed out of rape court if she claims she changed her mind the next day.

The contract could include all sorts of riders including one stating “I am signing this contract while NOT under the influence of alcohol or drugs”. Check.

The absurdity here is of Everest-like proportions but if they want consent let’s allow it to be documented for all the court to see.

- Alec Leamas

August.28.2014 at 12:14 pm

See, even in this absurd context there is yet more depths of absurdity to be explored – she would not be laughed out of rape court in such an instance (or, now), and that ought to be very scary to you.

- Agile Cyborg

August.28.2014 at 12:28 pm

Then there is no point of consent at all if consent can be reversed after the fact.

The bottom line here is sex is just the net to trap the man and ruin his life if said deranged female so chooses.

This has nothing to do with mitigating rape and everything to do with empowering mentally-unstable women to destroy innocent people simply because they are male.

- Alec Leamas

August.28.2014 at 12:31 pm

“Then there is no point of consent at all if consent can be reversed after the fact. The bottom line here is sex is just the net to trap the man and ruin his life if said deranged female so chooses.”

By Jove I think he’s got it!

- Agile Cyborg

August.28.2014 at 12:53 pm

Hehe… I had it a while back, deario. Like many years back.

- morganovich

August.29.2014 at 12:32 pm

“The contract could include all sorts of riders including one stating “I am signing this contract while NOT under the influence of alcohol or drugs”. Check.”

alas, i fear you may be wrong about that.

she could claim that she was drunk, therefore impaired, therefore unable to gauge impairment as judgement is the first thing to go, therefor unable to sign a valid contract.

she could claim it was misrepresented etc and that she was too impaired to know.

if one cannot consent to sex while drunk, one cannot sign a valid contract either, even one attesting to sobriety.

i grant you that having signed such a thing would make a case more difficult, but do not bet against the legalism here.

such a contract could very easily be deemed inadmissible, even in a real court. a school could just toss it out at whim.

a jury would never even know it existed.

- morganovich

August.29.2014 at 12:35 pm

also note:

consent can be revoked at any time.

even a fully valid, notarized, witnessed contract with a certified BAC reading is not really protection.

if someone she said “stop” afterwards, that’s it.

note that this is actually a legitimate issue in that if she does say stop, it means stop.

but anyone could claim they had done so.

this is just consent, not a contract with strict performance requirements.

you can orally revoke such consent at any time.

- ricbee

August.28.2014 at 9:39 pm

Apparently….

- cavalier973

August.28.2014 at 4:39 pm

One of you bright attorney types around here needs to create a ‘legitimate’ fuck contract that is 100% legal and protects fuckers from rape liability.

I think that’s called a “Marriage License”.

- ricbee

August.28.2014 at 9:40 pm

Even that’s not enough.

- Agile Cyborg

August.29.2014 at 10:39 am

Erm, a lot of fucking used to go on before marriage. Remember that? When people could expect to reasonably fuck without feminists breathing down their sweaty necks.

82. ricbee

August.28.2014 at 9:31 pm

Any guy who boffs a babe,better have written permission.

- timbo

August.29.2014 at 4:30 pm

I’m the bureaucrats will also require a written, a full dissertation of the event with details so they can hit the broom closet after doing nothing all day.

85. morganovich

August.29.2014 at 12:27 pm

the point here seems to be to criminalize everyone.

i mean, but hr standard of “intoxicated people cannot give consent” what % of college students are rapists? 70%?

this seems like an incredibly poor and authoritarian response to the difficulty faced in determining consent. often, such things are a he said/she said.

but, if you establish an arbitrary standard that makes much consensual activity criminal, then you have a fall back catch all.

you can say “she was drinking, you’re outta here” more or less at will.

this allows for capricious application of justice while adhering to the letter of the rules.

of course, as we see in the case of occidental, this gets applied unevenly.

basically, they would like to have all the students in a position where they can, virtually by fiat, expel anyone for an activity that is mostly not a problem.

it sets them up as despots, able to drop the axe at will.

86. timbo

August.29.2014 at 4:26 pm

If we could just bring in the toilet safety administration to put cameras between all women’s legs, then the trifecta will be complete.

I love how feminists, in their stated mission liberate women from the shackles, embrace heavy handed government at every turn.

To say there is gender inequality is to say there is income inequality or racial inequality. None of them exist in free market, free societies and they don’t even exists in our screwed up former somewhat free country.

This shithole is as good as it gets so stop bitching before you really see what the government can do for your disadvantaged group.

87. timbo

August.29.2014 at 4:33 pm

What if your pen doesn’t work because you are too drunk?

88. Windbreaker

August.31.2014 at 6:46 am

I love Big Brother.

89. JeffreyinSandySprings

August.31.2014 at 1:22 pm

typical –

women come into a male dominated field then expect to be treated different from men and change all of the rules.

happened in the military, happening in colleges and univerities and in professional sports.

90. DeltaV

September.5.2014 at 5:06 am

If this article is correct, then it appears that the US is enacting Sharia law on campuses. Not a judgement, just an observation. But interesting that it is ok for US campuses.