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

One 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. (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. If 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. No 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.

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.

But 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.