According to the most commonly cited estimate, 20 percent of women are sexually assaulted during their time at college and as few as 5 percent of these assaults are ever reported to the police.1 College authorities are required by law to investigate and adjudicate sexual assault complaints from their students, but they have repeatedly proven unwilling or incompetent to do so. (Some colleges stand accused of ignoring or downplaying sexual assault allegations in the interests of protecting themselves from bad publicity, others of conducting inept investigations and of handing out inadequate punishments to those found guilty.) The Department of Education currently has eighty-four US schools under investigation for mishandling cases of sexual assault.
Few would disagree that the systems for preventing and prosecuting sexual assault on US campuses are in need of change. But the efficacy and fairness of recent reforms that focus on making college grievance procedures more favorable to complainants and on codifying strict new definitions of sexual consent remain highly questionable. Advocates of these reforms tend to dismiss their opponents as reactionaries and “rape apologists”—a characterization that is probably accurate in some cases—but feminists, too, have cause to view these measures and the protectionist principles on which they are based with alarm.
The Obama administration first signaled its determination to tackle the issue of campus sexual assault in 2011, when the Department of Education’s Office for Civil Rights (OCR) wrote a letter to every college in the country, pointedly reminding them that failure to adopt appropriate policies for dealing with sexual misconduct was a violation of Title IX, the section of the Education Amendments of 1972 that forbids discrimination on the basis of gender. The letter, which announced itself as a “significant guidance document,” offered detailed recommendations on what such appropriate policies would include. Since institutions found in violation of Title IX risk having their federal funding withdrawn, these recommendations were effectively government directives and schools responded accordingly.
Some of the recommendations related to “proactive measures” that schools were to take in order to prevent sexual harassment and violence. These included publishing a notice of nondiscrimination, publishing grievance procedures, training employees in how to identify and report sexual misconduct, and designating a specific employee to coordinate compliance with Title IX. There were also recommendations on what Valerie Jarrett, senior adviser to the president, has called “more victim-centered incident-intake and justice response policies.”
Schools were advised to ensure that “steps taken to accord due process rights to the alleged perpetrator do not restrict or unnecessarily delay the Title IX protections for the complainant.” This ambiguous instruction seemed to advocate some due process for the accused, but not too much. Schools were also told that if they granted the right of appeal to students found guilty of sexual misconduct, the same right should be granted to complainants. (Thus a student found innocent of sexual assault charges by a college grievance panel could be tried again on the same charges.) Most notably, the letter instructed schools to use a “preponderance of the evidence” standard when judging the innocence or guilt of an accused student:
In order for a school’s grievance procedures to be consistent with Title IX standards, the school must use a preponderance of the evidence standard (i.e., it is more likely than not that sexual harassment or violence occurred). The “clear and convincing” standard (i.e., it is highly probable or reasonably certain that the sexual harassment or violence occurred), currently used by some schools, is a higher standard of proof. Grievance procedures that use this higher standard are inconsistent with the standard of proof established for violations of the civil rights laws, and are thus not equitable under Title IX.
In other words, a college grievance panel has now only to establish that it is 50.1 percent likely that a student committed sexual assault in order to find him guilty.
Part of the OCR’s honorable intention, it would seem, is to ensure that complaints of sexual assault are not dismissed or minimized by college authorities as they have been in the past. Yet as the troubling phrase “victim-centered” suggests, the new rules go beyond insisting on fair and equal treatment for sexual assault complainants. They effectively cancel the presumption of a defendant’s innocence, and replace it with the presumption of a complainant’s victimhood.
For some, this is a salutary development, a necessary antidote to the unfair disadvantages that rape victims have traditionally suffered when seeking redress in college tribunals. According to Colby Bruno, senior counsel at the Victim Rights Law Center, the preponderance of evidence standard “helps counterbalance so much of the bias and rape culture that permeates these cases.” But the proper remedy for bias is surely not more bias in the opposite direction. And while there is certainly a long history of rape victims being demeaned and automatically disbelieved, not all of the difficulties associated with prosecuting rape are attributable to sexist prejudice. Rape cases, which often boil down to the relative credibility of two conflicting narratives, are inherently difficult to prove. No fair adjudication process can get around this fact by assuming a posture of reflexive credulity toward a victim’s testimony.
Last October, twenty-eight current and retired Harvard law professors wrote a public letter to the Boston Globe expressing concern about the university’s Sexual Harassment Policy and Procedures that had recently been revised to comply with OCR directives. The procedures, they wrote, “lack the most basic elements of fairness and due process” and “are overwhelmingly stacked against the accused.” They also argued that these procedures did not reflect the university’s legal obligations but rather a dubious interpretation of those obligations as provided by OCR bureaucrats:
The goal must not be simply to go as far as possible in the direction of preventing anything that some might characterize as sexual harassment. The goal must instead be to fully address sexual harassment while at the same time protecting students against unfair and inappropriate discipline, honoring individual relationship autonomy, and maintaining the values of academic freedom. The law that the Supreme Court and lower federal courts have developed under Title IX and Title VII attempts to balance all these important interests. The university’s sexual harassment policy departs dramatically from these legal principles, jettisoning balance and fairness in the rush to appease certain federal administrative officials.
We recognize that large amounts of federal funding may ultimately be at stake. But Harvard University is positioned as well as any academic institution in the country to stand up for principle in the face of funding threats. The issues at stake are vitally important to our students, faculties, and entire community.2
Some supporters of the new rules believe that the imperative to address the sexual assault crisis on campuses overrides any footling concerns about due process. Since women are not generally inclined to lie about rape, they argue, the chances of false convictions under the new evidentiary standards are low.3 And if, in the end, a few men are found guilty of rapes they didn’t commit, this is an acceptable price to pay for ensuring that hundreds of assault victims receive justice. “We should believe, as a matter of default, what an accuser says,” Zerlina Maxwell asserted recently in The Washington Post. “Ultimately, the costs of wrongly disbelieving a survivor far outweigh the costs of calling someone a rapist.” The Guardian columnist Jessica Valenti sums up the argument thus: “On the one side, there are the 20 percent of college women who can expect to be victimized by rapists and would-be rapists; on the other side is a bunch of adult men (and a few women) worrying themselves to death that a few college-aged men might have to find a new college to attend.”
The perils of this ends-justifies-the-means calculus (variants of which have been used in recent years to defend racial profiling, the mass government surveillance of US citizens, and the torture of terrorism suspects) ought to be self-evident. It is a moral and strategic error for feminism—or any movement that purports to care about social justice—to argue for undermining or suspending legitimate rights, even in the interests of combating egregious crimes. If the chance of an unfounded assault allegation is “only” eight in a hundred, that is reason enough to avoid basing standards of evidence on the assumed good faith of complainants.
Even less plausible is the claim that miscarriages of justice are tolerable because the punishments inflicted by college disciplinary panels are relatively minor. Last summer The New York Times editorial board noted that the new evidentiary standards “seem justified” since they apply only to “administrative proceedings in which the accused student might be facing expulsion, not a loss of liberty.”
This argument displays a startling complacency not only about the prospect of expelling innocent men, but equally about the prospect of letting genuine offenders go free. To be branded as a rapist and expelled from university would seem to be a very terrible outcome for an innocent student, and not really terrible enough for a guilty one. Indeed, the fact that college rapists only face expulsion would seem to be a good reason why colleges ought not to be trying rape cases at all. If the aim is to address sexual assault with the seriousness it deserves, why leave it to panels made up of minimally trained professors, administrators, and in some instances students to deal with such cases? Why treat rape as a Title IX issue, rather than as a felony?
When Title IX was passed by Congress in 1972, its intended purpose was to ensure that women had equal access to educational institutions, both as students and as professors. The crucial passage of the amendment reads: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.” In 1977, a group of female undergraduates at Yale University, using an argument developed by Catharine MacKinnon, brought a suit against the school, proposing that the sexual harassment they had experienced on campus—professors offering to give them better grades in exchange for sexual favors—was a form of sex discrimination. The case of Alexander v. Yale was eventually thrown out on technical grounds, but the judge upheld the plaintiffs’ legal argument and in the years since then the OCR has officially recognized sexual harassment as a Title IX violation.
Since much of what is commonly understood by the term “sexual harassment” does not amount to criminal behavior, but may nonetheless be capable of creating a hostile environment for female students, it would seem to make sense to have such conduct fall within the remit of Title IX. (If, for example, fraternity pledges march through a campus chanting “No means yes, yes means anal,” as they did at Yale a few years ago, it is appropriate that the university authorities, rather than the police, discipline their behavior.)
But sexual harassment, as defined by the OCR, includes not only “unwelcome sexual advances” and “requests for sexual favors” but also sexual assault and rape. The result is a preposterous situation wherein rape is characterized—and punished—by college authorities principally as an infringement of a student’s right to equal educational opportunity. This is rather like having a group of train conductors prosecute the rape of a female commuter, on the basis that the crime violates her equal right to use public transport.
A number of organizations, including the Rape, Abuse and Incest National Network (RAINN), have expressed their opposition to having rape cases adjudicated by college tribunals.4 But most anti-rape campus activists remain strongly in favor of keeping rape allegations an internal college matter. Students, they point out, are usually reluctant to go to the police (whose willingness to take sexual assault claims seriously they have good reason to mistrust), and because of this any attempt to institutionalize partnerships between campus security and law enforcement will only result in even fewer assaults being reported. Danielle Dirks, a sociology professor at Occidental College, and one of a group of women who have filed Title IX complaints against the university, recently told The Nation:
I say this as a criminologist. I’ve given up on the criminal justice system. College campuses, which are supposed to be the bastions of cutting-edge knowledge and a chance to shape the rest of the country, actually can do right.
There is no doubt that the police and the courts are guilty of all manner of negligence, insensitivity, and rank stupidity in handling cases of sexual assault, but the wisdom of “giving up” on criminal justice—of retreating from the fight for fair treatment under the law—and taking refuge in a system of ersatz college justice remains highly questionable. In addition to the fear of not being believed, the chief reason that students cite for not reporting their assaults to law enforcement is their uncertainty about whether the incidents constitute sufficiently grave crimes.5 Asking those students to take their allegations to campus tribunals—to have their claims adjudicated in essentially the same manner as plagiarism charges—does nothing to clear up their confusion about the seriousness of sexual assault. On the contrary, it actively encourages the trivialization of sexual violence.
“Giving up” on criminal justice also suggests a rather cavalier attitude to the majority of American women who do not have recourse to college grievance panels. Even if, like Professor Dirks, one is persuaded that Title IX procedures represent the frontier of enlightened jurisprudence, the proper aim of feminism is surely to make prosecuting sexual assault fairer and safer for all women.
Much the same dubious desire to create privileged enclaves of protection unavailable to the general female population is apparent in the widespread support for a new “affirmative” standard of consent on college campuses. Bill 967, passed in California this year, requires all colleges that receive state funding to use an “affirmative consent” standard in arbitrating cases of sexual misconduct. According to the statute, commonly referred to as the “Yes Means Yes” law, sex is deemed to be consensual only when both partners have provided, verbally or nonverbally, an “affirmative, conscious, and voluntary agreement to engage in sexual activity.” (Such consent, which is rendered invalid if the party is unconscious or “incapacitated” by alcohol or drugs, must be “ongoing throughout a sexual activity.”)
Significantly, the Department of Education has deliberately refrained from specifying a “national standard for what it means to consent to sexual activity” because, as it noted last summer in a set of draft amendments to the Violence Against Women Act,
a definition would create ambiguity and confusion for institutional officials, students, employees, and the public, particularly in jurisdictions which either do not define consent or have a definition that differed from the one that would be in the regulations.
This argument has not, however, deterred colleges and states from going ahead and codifying consent standards of their own. “Yes Means Yes” bills have now been introduced in the state legislatures of New York, New Hampshire, and New Jersey. And according to the National Center for Higher Education Risk Management, more than eight hundred US colleges and universities are already using some sort of affirmative consent standard in their sexual assault policies.
The putative merit of affirmative consent is that it removes from a rape victim any obligation to prove that she physically or verbally resisted her assailant. This is a crucial matter because there are clearly many circumstances in which a victim’s lack of struggle or protest does not indicate willingness or complacency, but rather fear and the desire to avoid injury. However, the laws in California, New York, and many other states already explicitly exempt rape victims from having to prove that they resisted their assaults, verbally or otherwise. And there are good reasons for sticking with this simple proviso.
To acknowledge that the absence of “no” does not necessarily mean “yes” responds to something observably true about the way in which humans conduct themselves in stressful or threatening circumstances. It adds nuance to the law. To insist, instead, that the absence of “yes” always indicates assault makes the law a considerably blunter instrument. It ignores the fact that many—perhaps most—consensual sexual encounters take place without unambiguous permission being granted, and in doing so it dangerously broadens the category of sexual behavior that may be deemed assault.
Defenders of affirmative consent insist that this is alarmist nonsense. Since the law allows for “nonverbal” expressions of consent, all that is really required of men is that they ascertain the willingness of their sexual partners. “You don’t need an advanced degree to determine whether the person you’re being amorous with is into it or not,” Jessica Valenti contends in The Guardian. “Grabbing you closer: Into it. Lying there silently staring at the ceiling: Not into it.” Nor is it difficult, she writes, to establish whether a person is compos mentis or only semiconscious:
We’re all adults here, and it’s not difficult to tell when someone is too drunk to make a decision. A half muttered and barely coherent “yes” by a half-passed out person? No. A buzzy, happy, “rip my clothes off”! Yes. Let’s not pretend we don’t know the difference.
In the general run of things, Valenti may be right: gauging the enthusiasm and inebriation of a person is not an unduly challenging task. But the emotions with which people—particularly young, sexually inexperienced people—enter into sexual encounters are often more complicated and ambivalent than the simple categories of “into it” and “not into it” will allow. And college standards for what constitutes acceptable levels of drunkenness—levels, that is, at which consent is considered valid—are often more stringent than Valenti suggests.
Lena Dunham’s account of an unhappy sexual episode that she experienced as a freshman at Oberlin College is a case in point. The recollection, which appears in her recent book, Not That Kind of Girl, describes the confused and fundamentally equivocal spirit in which she took a man home from a party and ended up having sex with him. She was drunk and high, and although the man did not coerce her in any explicit way, she did not feel fully in control. The fact that she responded to his sexual advances by asking him if he would like “to make me come” was less an expression of genuine desire, she writes, than an attempt to convince herself that she was pursuing a grown-up sexual adventure of her own choosing. Only when she discovered that he was not wearing a condom did she call a halt to the proceedings and kick him out.
Dunham, who was initially inclined to look upon this experience as a miserable but educational mistake, has since come to regard it as rape. “I feel like there are fifty ways it’s my fault…. But I also know that at no moment did I consent to being handled that way.” Given that her verbal and nonverbal cues seem to have strongly suggested consent, and given that she was intoxicated but not incapacitated at the time, one might think that, even under affirmative consent rules, a college tribunal would be hard pressed to find in her favor. But according to Oberlin College’s current sexual offense policy, consent is not consent when given by a person whose “judgment is substantially impaired by drugs or alcohol.”6 Even though the man in this case was equally drunk (and could conceivably have regretted the incident himself), only the impaired judgment of his accuser would be considered relevant in establishing whether an assault took place.
Ezra Klein has observed, in an article titled “Yes Means Yes Is a Terrible Law, and I Completely Support It,” that branding men rapists for their roles in “genuinely ambiguous situations” is a likely and necessary outcome of affirmative consent law:
To work, “Yes Means Yes” needs to create a world where men are afraid…. It’s those cases—particularly the ones that feel genuinely unclear and maybe even unfair, the ones that become lore in frats and cautionary tales that fathers e-mail to their sons—that will convince men that they better Be Pretty Damn Sure.
Leaving aside for a moment whether this is a just or reasonable way of treating men, one has to wonder whether such a policy is ultimately good for women.
Elsewhere on the website Vox, Amanda Taub argues that
by exempting sexual aggressors from the responsibility of figuring out whether their partners are “eager and ready to sleep with them,” we’re asking their targets to either give in to sexual activity they don’t want, or to run the risk that a firm, assertive, continued rejection will end in violence.
But to exempt women from the responsibility of stating their own sexual wishes without prompting—to insist that it is the man’s job to “figure out” those wishes—comes dangerously close to infantilizing women.
Since affirmative consent law is officially gender neutral, it seems possible—in fact, likely—that at some point a man will use it to bring a sexual assault charge against a female student. He will attest that he was drunk when the woman made sexual advances toward him, that he felt too intimidated or confused to demur, that he never actually said “yes.” This will strike many people as a ludicrous misappropriation of a law that was designed to protect women. But it will be impossible to deny the legitimacy of such a complaint without acknowledging the retrograde premise on which affirmative consent is based: that men and women differ fundamentally in their ability to assert their sexual wishes; that even in the absence of violence, or overt threat of violence, the looming fact of men’s superior physical strength always acts as an implicit constraint on women’s expression of their sexual free will.
Laws that offer special protections to women based on their difference from men have a habit of redounding to women’s disadvantage. In the case of affirmative consent, the payback is readily apparent: women are deemed to have limited agency in their sexual relations with men, so men are designated as their sexual guardians—tenderly coaxing from them what it is they want or don’t want and occasionally overruling their stated wishes when they’ve had too much to drink. What a pity it will be if a campaign against sexual violence ends by undermining the very idea of female sexual autonomy that it seeks to defend.
This estimate is derived from the Campus Sexual Assault Study of 2007, and, like most of the statistics related to campus sexual assault, it requires some parsing. The CSA study, which found that 19 percent of the senior women students it surveyed had suffered some sort of sexual assault during their college years, relied on a self-selecting sample of college students from two public universities and, as its authors have pointed out, its findings cannot be regarded as nationally representative. The study also used a definition of sexual assault that encompassed a very wide range of incidents, from violent rape to “forced kissing,” and it made the decision to classify incidents as assault, even when the respondents themselves took issue with that classification. These caveats do not justify the conclusion of some conservative pundits that concerns about campus rape are merely “hysterical,” but they are significant nevertheless. ↩
On December 30, 2014, after a four-year investigation of Harvard Law School, the OCR announced that the school’s “current and prior” sexual harassment policies had been found in violation of Title IX. Harvard has now entered a resolution agreement with the OCR, under which it must again revise its policies. ↩
The statistics on false rape allegations are murky. Law enforcement data show that, on average, between 8 and 10 percent of all rape reports are judged to be “unfounded” at the investigative stage. But not all of the reports in the “unfounded” category are necessarily false, and conversely, not all false reports make it into the “unfounded” statistics. ↩
In an open letter to the White House in February 2014, RAINN wrote, “It would never occur to anyone to leave the adjudication process of a murder in the hands of a school’s internal judicial process. Why, then, is it not only common, but expected, for them to do so when it comes to sexual assault?” ↩
In a study commissioned by the National Institute of Justice in 2000, 42.1 percent of surveyed assault victims said they did not report their assault to the police because they were “not sure a crime or harm was intended.” ↩
KC Johnson at the Manhattan Institute’s Minding the Campus blog has surveyed the consent policies of fifty-five top-ranked American universities and found that roughly a third of them—including those at Brown, Stanford, Duke, and Columbia—state or imply that consent is invalid when the consenting party is intoxicated. ↩