Mishandling Rape - The New York Times
"Research suggests that more than 90 percent of campus rapes are committed by a relatively small percentage of college men — possibly as few as 4 percent — who rape repeatedly, averaging six victims each. Yet these serial rapists overwhelmingly remain at large, escaping serious punishment.
Against this background, the federal government in 2011 mandated a ramped-up sexual assault adjudication process at American colleges, presumably believing that campuses could respond more aggressively than the criminal justice system. So now colleges are conducting trials, often presided over by professors and administrators who know little about law or criminal investigations. At one college last year, the director of a campus bookstore served as a panelist. The process is inherently unreliable and error-prone.
At Columbia University and Barnard College, more than 20 students have filed complaints against the school for mishandling and rejecting their sexual assault claims. But at Vassar College, Duke University, The University of Michigan and elsewhere, male students who claim innocence have sued because they were found guilty. Mistaken findings of guilt are a real possibility because the federal government is forcing schools to use a lowered evidentiary standard — the “more likely than not” standard, which is much less exacting than criminal law’s “proof beyond a reasonable doubt” requirement — at their rape trials. At Harvard, 28 law professors recently condemned the university’s new sexual assault procedures for lacking “the most basic elements of fairness and due process” and for being “overwhelmingly stacked against the accused”...
Consider the illogical message many schools are sending their students about drinking and having sex: that intercourse with someone “under the influence” of alcohol is always rape. Typical is this warning on a joint Hampshire, Mount Holyoke and Smith website: “Agreement given while under the influence of alcohol or other drugs is not considered consent”; “if you have not consented to sexual intercourse, it is rape.”
Now consider that one large survey showed that around 40 percent of undergraduates, both men and women, had sex while under the influence of alcohol. Are all these students rape victims? And what if both parties were under the influence? Asked this question, a Duke University dean answered, “Assuming it is a male and female, it is the responsibility in the case of the male to gain consent.” This answer shows more ideology than logic.
In fact, sex with someone under the influence is not automatically rape. That misleading statement misrepresents both the law and universities’ official policies. The general rule is that sex with someone incapacitated by alcohol or other drugs is rape. There is — or at least used to be — a big difference. Incapacitation typically means you no longer know what’s happening around you or can’t manage basic physical activity like walking or standing...
According to an idealized concept of sexual autonomy, which has substantial traction on college campuses today, sex is truly and freely chosen only when an individual unambiguously desires it under conditions free of coercive pressures, intoxication and power imbalances. In the most extreme version of this view, many acts of seemingly consensual sex are actually rape. Catharine A. MacKinnon took this position in 1983 when she argued that rape and ordinary sexual intercourse were “difficult to distinguish” under conditions of “male dominance.”
Today’s college sex policies are nowhere near so extreme, but they are motivated by a similar ideal of sexual autonomy. You see this ideal in play when universities tell their female students that if they say yes under the influence of alcohol, it’s still rape. You see it in Duke’s 2009 regulations, under which sex could be deemed coercive if there were “power differentials” between the students, “real or perceived”...
Sexual assault may not be perfectly defined even in the law, but that term has always implied involuntary sexual activity. The redefinition of consent changes that. It encourages people to think of themselves as sexual assault victims when there was no assault. People can and frequently do have fully voluntary sex without communicating unambiguously; under the new consent standards, that can be deemed rape if one party later feels aggrieved. It will take only one such case to make the news, with a sympathetic defendant, and years of hard work building sexual assault protections for women on campus will be undermined...
Attending fraternity parties makes women measurably more likely to be sexually assaulted.
If colleges are serious about reducing rapes, they need to break the links among alcohol, all-male clubs and campus party life. Ideally, we should lower the drinking age so that staff or security personnel could be present at parties...
Moreover, sexual assault on campus should mean what it means in the outside world and in courts of law. Otherwise, the concept of sexual assault is trivialized, casting doubt on students courageous enough to report an assault...
Rape on campus is substantially enabled by the fact that rapists almost always get away with their crimes. College punishments — sensitivity training, a one-semester suspension — are slaps on the wrist. Even expulsion is radically deficient. It leaves serial rapists free to rape elsewhere, while their crimes are kept private under confidentiality rules. If college rape trials become a substitute for criminal prosecution, they will paradoxically help rapists avoid the punishment they deserve and require in order for rape to be deterred."
Comments (the first is really troubling, is part of the "women had/have to suffer so men must too", and perhaps worst still, was highly recommended by readers; some others are troubling to a lesser extent for similar reasons):
""Under this definition, a person who voluntarily gets undressed, gets into bed and has sex with someone, without clearly communicating either yes or no, can later say — correctly — that he or she was raped."
Right, and this is a problem because....why, exactly?
All that's happened is that now young men face the possibility of serious consequences for their actions.
It used to be that young women were told to be careful, because something bad could happen to them.
Now we're telling young men to be careful, because something bad could happen to them--such as a charge of rape if they don't obtain consent.
I don't see why this is a problem. The world is dangerous. Take proper precautions--including documenting consent if you're a male who doesn't want to be drawn into (founded or unfounded) rape accusations.
What I can't figure out is that for decades the message of "girls be careful" was perfectly fine. Now that the message is "boys be careful", oh noes o noes! Society is coming apart at the seams!
Is the message of male responsibility really so devastating to our notion of what constitutes a functioning society?"
"It seems to me that the colleges need simple rules to deal with complaints of rape. Such a rule would be that if the sex occurs on campus in a dorm or frat or sorority and the girl says after the fact that it was rape, then as far as the university is concerned it was rape, and the boy is expelled. The message then to boys would be to keep it in your pants or get a motel room. And if the girl complains that she was raped in a motel room, tell her to call the police.
Would that not solve it?"
""At Harvard, 28 law professors recently condemned the university’s new sexual assault procedures for lacking “the most basic elements of fairness and due process” and for being “overwhelmingly stacked against the accused.”
Did the same 28 protest when the process was overwhelmingly stacked against the accuser? The fact is, those 28 would likely appose balanced risk, or any risk that a man would face, but no matter what, where were their voices when women were taking a beating with little hope of justice. Those 28 can likely avoid all charges by stopping sleeping with students."
"Actually I would say some of the assumptions outlined in the article are sexist against males. On a whole range of issues today's amateur psychology, politically correct social reaction is often over reaction;"curing" one wrong with another wrong. People then wonder why the "cure" doesn't work.
I would think some of the current practices on campuses will make forced, violent rape against a woman's fully conscious will worse before it gets better and will victimize a bunch of males by practically criminalizing regretted consensual sex. It may perhaps even turn some towards rape or hatred of woman that would not otherwise do so. Sexual drive is an extremely powerful force with complex impacts and if you mess with it in a way that is not entirely clinical (and even then) you are asking for major other unforseen new problems without even improving the real/original problem."
"Energy should go towards finding and removing serial rapists from society rather than toying around with college age mating patterns.
It is unfortunate that there are men and women who get off on serial seduction but if this is done with of-age partners who are cooperative and fully aware of what is happening ('eyes wide open'), it should not be a potentially criminal, life-changing act."
"Look at Brandeis University, where the President has taken wide actions to address and fight sexual assault, even leading to an accused student filing a complaint against the University through the Department of Education. Despite all of this, student groups that insist the University does nothing to combat sexual assault continue to silence any voices for dialogue and instead hung a banner at the top of the campus taking a quote grossly out of context from one of the President's speeches."
"There's only one possible message from all this: University men need to take their romantic interests off campus. Chose older, working women as partners who have nu university affiliations. "