Campus Rape and “Affirmative Consent” – Feminism Off the Rails?

Unknown-1One in five college women is sexually assaulted – we’re told. I have a daughter in college (see her comments, below). But I’m skeptical about that statistic; kind of depends how one defines “sexual assault.” I recall one study showing horrendous spousal violence rates. Turned out “spousal violence” included raising one’s voice. What one girl considers a sexual assault another might not.

Campus rape has been a big topic since the federal government, under Title IX, faulted many colleges for insufficiently tough policies about it. images-3(How this became a federal issue I fail to understand.) And California has adopted a new “affirmative consent” standard – it’s rape if the female doesn’t explicitly say yes before and during. (It’s not required in writing, and notarized – yet.) New York has now followed California’s lead.

I consider myself a feminist. But this seems like an anti-male hysteria. images-1If previously the culture in this regard was skewed against women, now the pendulum is swinging too far the other way, with too much presumption against the male in a situation and too little consideration of mitigating factors – including female behavior.

The California rule reflects ludicrous disregard for the realities, subtleties, and complexities of human interaction. Sexual dynamics are not like contract negotiations; a lot is wordless. Just when we’ve gotten Big Brother out of gay bedrooms, we’re letting him back in to campus bedrooms through a back door, attempting to regulate the details of a sexual encounter, going far beyond merely banning what’s conventionally been understood as assault.

Further, while college administrators do have a proper concern with what goes down among students, it is hugely misguided to task them as judges and juries in what are really criminal justice matters. images-5No one would imagine a student shooting another is a disciplinary issue properly handled by school personnel, rather than the police and the courts. Sexual assault is likewise a serious crime that belongs in the criminal justice system, not campus disciplinary tribunals. Universities are not places where the writ of society’s law does not run.

This matters a lot because the constitutional protections applicable to criminal defendants are absent from campus proceedings – including “innocent until proven guilty.” Whereas in criminal trials the prosecutor has the burden of proof, a student accused of sexual assault may find himself with the burden of proving his innocence.  Furthermore, the “affirmative consent” policy deems a drunk woman incapable of consent, thus applying a concept the law calls strict liability for any sex with a drunk girl. If she was drunk, you’re sunk. And school administrators often tend to apply a “preponderance of the evidence” standard, rather than “proof beyond a reasonable doubt.”

"Or after." Better get a crystal ball, guys.

“Or after.” Better get a crystal ball, guys.

All this can put a male in a very tough position – when there’s normally no independent corroboration of what happened and the words said – and when any sex that a girl later regrets can be deemed equivalent to rape. (Am I exaggerating? See pink box at left.)

And it’s not as though such campus proceedings are less consequential than criminal ones. True, a college can’t send you to prison. But it can expel you – ruining your life just as surely.

In a case of rape as conventionally understood, of course the perpetrator should be punished, one way or another. Yet, for all the scare statistics, I suspect that such crimes of violence among students are actually fairly rare, with the far more typical situation being far more murky and ambiguous; and college guys being more opportunists than they are sexual predators.

images-6But it’s not good that any student sexual encounter can blow up into a federal case, putting a big dark cloud over sex. Reminds me of southern blacks in Jim Crow days – subject to lynching if a girl cries “rape.”

It’s doubtful all this serves girls either. College adjudicators may be less keen on protecting them than on protecting the institution. A girl suffering a real sexual assault should go to the police. Otherwise it falls under the heading, “human relations.”

To me, the current climate, with differing rules applicable to males versus females, is ironically the antithesis of sexual equality and a woman-empowering feminism – its assumption seems to be that women are just helpless victims without personal agency.

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4 Responses to “Campus Rape and “Affirmative Consent” – Feminism Off the Rails?”

  1. Elizabeth Robinson Says:

    1. I agree that the vast majority of sexual assault cases reported on college campuses are not gang rapes.
    2. I agree that it is possible that the definition of “sexual assault” is misleadingly broad, and includes some things that could also be defined as groping, for instance. But if a girl reports an assault, she must have been mentally or physically affected to some notable degree, and that isn’t something to brush off. Some people may be very traumatized by groping, while others may not be. Everyone reacts differently, and there shouldn’t be any objective line for what is considered an assault/traumatic event.
    3. That being said, I think girls do need to take more responsibility for their actions, and be more honest with themselves about whether they actually wanted to have sex when the intercourse took place, instead of construing after-the-fact regret as being raped. I speak from personal experience about this.
    4. I agree that sexual assault is not exclusively a male-on-female problem. One of the biggest advocates for sexual assault policy reform at Tufts is an openly gay man who has testified before Congress about being assaulted by another man.
    5. I remember that during orientation at the beginning of freshman year we were shown a video that depicted a couple about to have sex, going through a very typical and simple conversation to make sure both gave consent. However, the conversation quickly progressed into the absurd, to the point where a lawyer was actually sitting in bed with them asking each for their signature on a legal consent document. Obviously, the video was not entirely serious, but intended to impress upon students the importance of giving consent. It sure stuck in my mind.
    6. I can VERY easily understand how a drunk girl may find herself en route to the house/room/apartment of a drunk guy, without quite being sure how she got there, and without the ability to really say no, or stop. At a certain level of intoxication, all the reasons not to do something magically evaporate from your mind. You know those reasons exist, but you can’t quite pinpoint them, and they stop mattering anyway. You lose the capacity to make your own decisions, and simply go along with what other people decide. You vaguely realize that you’re no longer in control, but you don’t realize that’s a bad thing. The guy doesn’t fully understand that he has essentially forced a girl to do something she wouldn’t otherwise have done. You conclude by warning against the assumption that women are helpless victims without agency—I would argue that many girls, knowingly or not, lose whatever agency they had once they start drinking. As do boys.
    Perhaps the most important lesson to be taught—to both men and women—is when to stop drinking, and to be aware of how certain levels of alcohol affect decision making processes. Having been in the state of mind described above, I can understand how rape could easily happen in college where most festivities include far too much alcohol.
    7. I think part of the reason why “innocent until proven guilty” doesn’t seem to apply in many sexual assault cases is because there is little proof to be found, besides the claims of one party. I know girls are told to get hold of a rape kit shortly after an unwanted sexual encounter, but I think that would be the very last thing I would want to do after being sexually assaulted. Do I support the unfair accusation and punishment of men due to simple suspicion? Obviously not, but rape is fundamentally different from other crimes.

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