Unwanted Sex

A turning tide on date rape.

The wars over campus date rape are no longer in the headlines, but the latest news from this front is sure to get some attention. Harvard has adopted a new policy under which sexual assault complaints will be investigated by the school's administrative board only if there is some corroborating evidence. While this policy will also apply to other offenses, such as theft, the discussion of the new rule has focused almost exclusively on the issue of date rape - which is particularly likely to involve he said/she said charges.

Since the late 1980s, college campuses have been at the center of a national effort to raise consciousness about date and acquaintance rape. This movement addressed a real and serious issue. Unfortunately, from the very beginning, it was marred by an uncritical embrace of various tenets of radical feminist dogma - such as an absurdly broad definition of sexual assault and the notion that women don't lie about rape. These attitudes have affected campus rape prevention programs as well as disciplinary proceedings in cases of alleged sexual misconduct.

Most people today would agree that physically forcing another person into sex, or threatening to use force, is rape - even if it happens on a date and even if the unwanted sex was preceded by consensual sexual contact. But anti-date rape activists also use the term to describe situations in which someone is pressured into sex through ''continual arguments,'' verbal persuasion not including threats (such as ''everyone is doing it''), and non-violent but persistent advances.

A leading spokeswoman for this movement, Katie Koestner, a graduate of the College of William and Mary, openly acknowledges that the student she accused of rape did nothing more than press for sex despite her repeated refusals.

For many activists, even the strictest interpretation of ''no means no'' is not enough: Nothing less than an explicit ''yes'' will do. The Antioch College sexual offense code, which mandates verbal consent every step of the way (from undoing a button to penetration), may be unique, but many colleges and universities have instituted less extreme versions of such policies.

Dissident feminists such as Katie Roiphe, author of the 1993 book ''The Morning After,'' argue that expanding the definition of rape does not empower women but turns them into perpetual victims - fragile creatures who must be protected from nagging and miscommunication. But aside from that debate, formal charges and investigations stemming from ambiguous sexual encounters are rife with potential for abuse. The campus disciplinary boards that handle these charges have been widely decried as kangaroo courts in which the accused are routinely denied elementary rights.

Thus, in a notorious 1996 case at Brandeis University, third-year undergraduate David Schaer was found guilty of engaging in unwanted sexual activity and punished with suspension and probation. His accuser claimed that she fell asleep in his bed after engaging in some foreplay and telling him that she didn't want to have sex, and then woke up to find him having sex with her. Schaer insisted that the woman was awake and the sex was consensual. The university board made its decision based in part on such ''evidence'' as a campus police officer's statement that the complainant ''looked like a rape victim'' a month after the encounter, and testimony from a ''witness'' who described Schaer as an ''egotistical bastard who had no respect for women.''

Columbia University has gone so far in turning its sexual misconduct investigations into star chamber trials as to deny an accused student the right to confront the accuser or to obtain a transcript of the hearing. When this policy was met with widespread condemnation, one anti-rape activist wondered aloud why there was so much concern about ''the rapist'' - a comment which reveals a frightening contempt for the presumption of innocence.

The Supreme Judicial Court of Massachusetts has ruled, in rejecting Schaer's lawsuit against Brandeis, that college disciplinary boards are not required to afford their students rights similar to the ones they would have in a legal proceeding. It is true that a college cannot impose criminal penalties on a student; at worst, he or she can be expelled.

Still, especially when dealing with alleged offenses that are not merely violations of academic rules but ''real-world'' crimes, blatant disregard for the rights of the accused is shockingly unfair, even if it is legal. If the new policy at Harvard signals a turning of the tide, it will be a victory for true gender equity.

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