The increasingly contentious debate about the proper response to sexual assault on college campuses took a new turn on Oct. 15, when The Boston Globe ran an op-ed signed by twenty-eight current and retired Harvard Law School professors expressing “strong objections” to the school’s new Sexual Harassment Policy and Procedures. The sharply worded statement not only slammed the university administration for forcing the policy on all of Harvard’s schools without adequate discussion but also charged that the new procedures for handling complaints of sexual misconduct “lack the most basic elements of fairness and due process [and] are overwhelmingly stacked against the accused.” It even went so far as to urge Harvard to defy federal guidelines on addressing such complaints and “stand up for principle in the face of funding threats.” This is the latest, and biggest, volley in a mounting revolt against the overreach of government-led initiatives to curb campus rape—coming from unusual suspects.
Thus, the Harvard signatories include not only noted criminal defense attorney Alan Dershowitz, who has long been viewed as right of center in the culture wars, but preeminent African-American law professor and Barack Obama’s mentor Charles Ogletree and several renowned female jurists such as veteran civil rights attorney Nancy Gertner, constitutional scholar Martha Field, and feminist legal theorist Janet Halley. This protest is not easy to dismiss as a right-wing anti-woman backlash.
The Harvard 28 join other liberal and feminist dissenters from the campus anti-rape crusade. Among them is George Washington University law professor John Banzhaf, a public interest attorney who has not only battled the tobacco and food industries but championed women’s rights in major sex discrimination cases, notably the push to force the Citadel military academy to admit women in the late 1980s. (His website boasts that he has been called a “radical feminist.”) In the past several months, Banzhaf has focused much of his attention on what he believes is a massive attack on the rights of students accused of sexual misconduct. The title of one of his press releases speaks for itself: “Illegals at Border Have More Rights Than College Students Accused of Rape.”
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Meanwhile, a new California law that requires schools to use an “affirmative consent” standard in cases of alleged sexual misconduct has inspired a groundswell of similar state and local initiatives. (Harvard, so far, has rejected such a policy as too vague.) But it has also drawn objections from people like feminist attorney and author Wendy Kaminer, New York columnist Jonathan Chait, and Nation blogger Michelle Goldberg. The liberal backlash against so-called “Yes Means Yes” laws may have gotten an inadvertent boost from an article penned in its defense by Vox co-founder Ezra Klein. Klein appeared to agree that the legislation was likely to result in unfair punishments—though he later claimed this was a misunderstanding—but argued that it was good precisely because it had the potential to strike “fear and confusion” into men, since the problem of rape was so terrible and pervasive that only “ugly” remedies against it could be effective. It’s hard to think of an argument more blatantly illiberal.
The current debacle has its roots in 2011. In April of that year, even as the White House launched a nationwide awareness campaign on campus sexual assault, the Department of Education’s Office on Civil Rights issued a “Dear Colleague” letter to college and university leaders with guidelines on the proper handling of disciplinary charges of sexual misconduct. Crucially, the letter suggested that the standard in evaluating such charges should be not be “clear and convincing evidence,” which most schools had used until then, but “preponderance of the evidence” (often described as anything more than a 50-50 chance that the accused committed the offense). Other recommendations included not allowing the accused to question the accuser at the hearings; whether the accused could have an attorney present was left to the schools’ discretion, except for the requirement that both parties be treated equally in this regard. While the OCR guidelines were not mandatory, a May 2013 letter issued jointly with the Civil Rights division of the Department of Justice made it clear that failure to follow them could result in loss of federal funding.
This coincided with federal investigations into complaints by students at more than 50 colleges who said administrators mishandled reports of sexual assault, and with an upsurge in campus activism demanding punishment for accused offenders. The result, say critics such as Banzhaf, has been a process egregiously skewed against the accused. While in theory the “preponderance” standard still requires giving slight benefit of the doubt to the defendant, in practice this may be neutralized by pressure to believe the complainant. At Stanford, for instance, an investigation by the Foundation for Individual Rights in Education showed—even before the recent reforms promoted by the federal government—that training materials for student “jurors” advised them to be “very, very cautious in accepting a man’s claim that he has been wrongly accused of abuse or violence,” since the vast majority of such claims are true.
In the last few years, there has been a spike in lawsuits against colleges by male defendants in sexual misconduct cases claiming they were denied due process and wrongfully expelled; ironically, many of these lawsuits also allege sex discrimination under Title IX, the same law that requires colleges to investigate reports of sexual assault. In a particularly bizarre case at Occidental College, “John Doe” was expelled over a dorm room encounter with a young woman who was judged incapable of valid consent due to intoxication, even though, in her allegedly incapacitated state, the female student had texted “Doe” to ask if he had a condom and to discuss sneaking out of her dorm and into his, and texted another friend to say that she was about to have sex.
The Occidental case, in which “John Doe” was found responsible for misconduct despite being no less drunk than his accuser, also highlights one of the problems mentioned by the Harvard dissenters: the fact that “rules governing sexual conduct between students both of whom are impaired or incapacitated … are starkly one-sided as between complainants and respondents.” This double standard also seems to be rather flagrantly gender-based—grossly unfair to men and paternalistic toward women.
At Duke, one of the universities being sued for alleged wrongful expulsion, Dean of Students Sue Wasiolek seemed to admit as much at a hearing on the lawsuit last May. When asked if sex between two equally intoxicated students should be regarded as mutual rape, Wasiolek replied, “Assuming it is a male and female, it is the responsibility in the case of the male to gain consent before proceeding with sex.”
The problems with current campus policies are likely to be exacerbated by so-called “yes means yes” laws and similar rules which already exist on more than 800 campuses.
One sign of trouble is that, as progressive blogger Fredrik deBoer notes, supporters of this standard don’t seem to be able to agree on what it means. Some think it mandates verbal consent and communication, preferably not just once but throughout a sexual encounter, and will revolutionize the way we approach sex and consent. Others say that it does no more than codify the simple decency of only having sex with a person who indicates that she or he is willing to have sex, and that nonverbal cues and body language will do.
Defenders of “affirmative consent,” such as Suffolk University sociologist Susan Sered, note approvingly that the legislation “removes the onus from potential victims to unequivocally convey and prove refusal … and places the onus on potential perpetrators to ensure active consent.” But this seems to be another way of saying that “yes means yes” shifts the burden of proof to the accused, which fundamentally conflicts with the presumption of innocence. And how could an accused person prove affirmative consent, especially of the nonverbal variety? When asked about this during the debates on the California bill, one of its sponsors, Democratic Assemblywoman Bonnie Lowenthal, told a newspaper, “Your guess is as good as mine.” For civil libertarians, this should not be an encouraging answer.
Klein, like some other supporters of the legislation, argues that concerns about the presumption of innocence and the constitutional rights of accused are misplaced since “college hearings do not carry the full guarantee of due process that, say, criminal legal proceedings do.” Yet he also admits that courts have held that students in university hearings are entitled to “basic due process protections,” though the level of such protections is determined “on a case-by-case basis.” It would seem reasonable that, in cases involving an accusation of non-consensual sex—something that would be a felony in the criminal justice system—the need for due process rights would be considered fairly high. Moreover, Kaminer makes a persuasive argument that “assaults on the fundamental presumption of innocence and due process in rape cases that begin on campus are unlikely to end there.” If sexual consent comes to be equated with explicit verbal agreement in college proceedings, lesser protections for victims in real courts will seem unjustifiable.
There is little doubt that some victims of rape on campus get a raw deal, especially in cases involving popular athletes in schools where sports reign supreme. But it’s far from clear that laws and policies which employ broad and confusing definitions of sexual assault and consent will do anything to address such injustices. What they will do is bring government into the bedroom in a far more literal way than the most aggressive anti-abortion laws.
In the past two years, overzealous efforts to regulate sexual conduct on campus have drawn criticism mainly from conservatives such as George Will. Ironically, in recent days, a couple of conservative commentators—Conn Carroll on Townhall.com and Heather Mac Donald in The Weekly Standard—have expressed qualified sympathy for this campaign as a way to discourage campus sex, restore chivalry, and vindicate the Victorian notion that women need to be protected from male lust. But now, we may finally be seeing a backlash against the new sex police based on fundamental liberal values: concern with the rights of the accused, opposition to government intrusion into the sexual choices of consenting adults, and rejection of benign sexism toward women. It could be a game-changing moment in this debate.
