One evening in February 2012, Vassar College students Xialou "Peter" Yu and Mary Claire Walker, both members of the school's rowing team, had a few drinks at a team gathering and left together as the party wound down. After a make-out session at a campus nightspot, they went to Yu's dorm room, where, by his account, they had sex that was not only consensual but mainly initiated by Walker, who reassured her inexperienced partner that she knew what to do. At some point, Yu's roommate walked in on them; after he was gone, Yu says, Walker decided she wanted to stop, telling him it was too soon after her breakup with her previous boyfriend. She got dressed and left.
The next day, according to documents in an unusual complaint that Yu filed against Vassar last June, Yu's resident adviser told him some students had seen him and the young woman on their way to the dorm. They had been so concerned by Walker's apparently inebriated state that they called campus security. Alarmed, Yu contacted Walker on Facebook to make sure everything was all right. She replied that she had had a "wonderful time" and that he had done "nothing wrong"-indeed, that she was sorry for having "led [him] on" when she wasn't ready for a relationship. A month later Walker messaged Yu herself, again apologizing for the incident and expressing hope that it would not affect their friendship. There were more exchanges during the next months, with Walker at one point inviting Yu to dinner at her place. (In a response to Yu's complaint in October, attorneys for Vassar acknowledged most of these facts but asserted that Walker had been too intoxicated to consent to sex and had been "in denial," scared, and in shock when she wrote the messages.)
Last February, one year after the encounter, the other shoe dropped: Yu was informed that Walker had filed charges of "nonconsensual sexual contact" against him through the college disciplinary system. Two and a half weeks later, a hearing was held before a panel of three faculty members. Yu was not allowed an attorney; his request to call his roommate and Walker's roommate as witnesses was denied after the campus "gender equity compliance investigator" said that the roommates had emailed him but had "nothing useful" to offer. While the records from the hearing are sealed, Yu claims his attempts to cross-examine his accuser were repeatedly stymied. Many of his questions (including ones about Walker's friendly messages, which she had earlier told the investigator she sent out of "fear") were barred as "irrelevant"; he says that when he was allowed to question Walker, she would start crying and give evasive or nonresponsive answers. Yu was found guilty and summarily expelled from Vassar.
New Rules for Campus Sex
Yu, a U.S.-educated Chinese citizen, is now going after the Poughkeepsie, New York, school in federal court, claiming not only wrongful expulsion and irreparable personal damage but sex discrimination. His complaint argues that he was the victim of a campus judicial system that in practice presumes males accused of sexual misconduct are guilty. His is one of three such lawsuits filed last summer. St. Joseph's University in Philadelphia is being sued by an expelled student, New York state resident Brian Harris, who likewise claims he was railroaded by a gender-biased campus kangaroo court. And in August college basketball player Dez Wells sued Ohio's Xavier University for expelling him in the summer of 2012 based on a rape charge that the county prosecutor publicly denounced as false.
While the lawsuits target private colleges, they also implicate public policy. That was especially true in Wells' case: When he was accused, Xavier was under scrutiny by the federal government for its allegedly poor response to three prior sexual assault complaints, and his attorney says he was the "sacrificial lamb" to appease the U.S. Department of Education. In the other two cases, there was no such direct pressure, but the charges were adjudicated under a complainant-friendly standard that the Obama administration has been aggressively pushing on academic institutions.
In April 2011, the Department of Education's Office of Civil Rights sent a letter to college and university presidents laying out guidelines for handling reports of sexual assault and harassment. One key recommendation was that such complaints should be evaluated based on a "preponderance of the evidence"-the lowest standard of proof used in civil claims. (In lay terms, it means that the total weight of the believable evidence tips at least slightly in the claimant's favor.) Traditionally, the standard for finding a student guilty of misconduct of any kind has been "clear and convincing evidence"-less stringent than "beyond a reasonable doubt," but still a very strong probability of guilt.
Last May the government reiterated its commitment to the "preponderance" standard in a joint Department of Justice/Department of Education letter to the University of Montana following a review of that school's response to sexual offenses. The letter was explicitly intended as a "blueprint" for all colleges and universities; noncompliant schools risk losing federal funds, including student aid eligibility. Meanwhile, the Department of Education also has launched civil rights investigations into complaints by several college women who say they were sexually assaulted by fellow students, then revictimized by school authorities when their assailants either went unpunished or received a slap on the wrist. The schools under scrutiny include the University of Southern California, the University of North Carolina, and the University of Colorado at Boulder.
The federal war on campus rape is unfolding amid a revival of what Katie Roiphe, in her landmark 1994 book The Morning After: Sex, Fear and Feminism on Campus, dubbed "rape-crisis feminism"-a loosely defined ideology that views sexual violence as the cornerstone of male oppression of women, expands the definition of rape to include a wide range of sexual acts involving no physical force or threat, and elevates the truth of women's claims of sexual victimization to nearly untouchable status. This brand of feminism seemed in retreat a few years ago, particularly after a hoax at Duke University drew attention to the danger of presuming guilt. (In 2007, the alleged rape of a stripper by three Duke lacrosse players sparked local and national outrage-until the case was dismissed and the young men declared innocent.) Yet in 2013, the concept made a strong comeback with a sexual assault case that gained national visibility in January and went to trial in March. This one was in Steubenville, Ohio.
The facts in Steubenville were ugly enough. A 16-year-old girl who got very drunk at an end-of-the-summer high school party was repeatedly sexually assaulted while unconscious or barely conscious. One boy, 17-year-old Trent Mays, penetrated her with his fingers, tried to get her to perform oral sex, and essentially used her as a masturbation aid; another, Ma'lik Richmond, briefly participated in the abuse. Three other teenagers witnessed at least some of these acts (which took place in a car and in the basement of a home after the girl left the party with the boys), taking photos and a video. The next day, Mays bragged about his exploits and mocked the girl in text messages to friends, to whom he also sent her nude photo. When Mays and Richmond, both star players on the Steubenville High School football team, were arrested and charged with rape a few days later, many residents in the football-worshiping small town sympathized with the boys and were inclined to assume that the girl-an out-of-town private school student-was lying to cover up her misbehavior.
This sordid saga arguably shone a spotlight on the dark underside of small-town "football culture," which can breed a sense of entitlement and impunity in popular athletes. Yet the national press coverage, fueled by wild rumors of unspeakable brutalities (the girl was said to have been drugged, kidnapped, urinated on, and gang-raped for hours) and of an official cover-up, turned into a far more sweeping indictment of America's "rape culture"-a term that suddenly migrated from the fringes of feminist rhetoric into mainstream discourse.
Like many radical theories, the idea of rape culture contains plausible elements of truth: Some traditional gender arrangements have indeed encouraged cavalier or even tacitly accepting attitudes toward certain kinds of sexual violence. For much of history women have been treated to varying degrees as men's sexual property, with rape condoned if not legitimized in some circumstances: for example, in marriage (including forced marriage), or toward women who transgressed norms of feminine propriety. Even in the United States, as recently as 40 years ago, juries could be instructed to consider "unchaste character"-such as being single and on birth control-as a strike against an accuser's credibility, and courts often treated submission to overt physical intimidation as consent (at least in acquaintance-rape situations). And there is some basis for the argument that the conventional script of male pursuit and feminine coyness-with "no" routinely taken to mean "try harder"-can sometimes blur the lines between consent and coercion.
But this history is only one part of a complex mix of cultural attitudes-a mix that has long included genuine societal abhorrence of rape as a violation of female personhood. It is a measure of this abhorrence that when feminists in the 1970s challenged the unjust treatment of rape victims, the reforms they advocated-such as dropping resistance requirements that did not apply to other violent crimes, or barring the use of a woman's sexual history to discredit her-were soon enacted with overwhelming support. Moreover, the social response to sex offenses has been complicated by many factors besides sexism, from a general human tendency to sweep sordid matters under the rug to the difficulty of proving crimes that occur in intimate settings; these factors have affected male victims, too. Feminist theory offers no convincing explanation for why a homophobic patriarchy would also fail to protect boys from adult male sexual predators.
And yet the "rape culture" trope has gained such sway that even a New Yorker writer highly critical of activist zealotry over Steubenville offered a disclaimer to defend the term. In an article in the magazine's August issue, Ariel Levy cited a 2011 Centers for Disease Control and Prevention (CDC) report stating that one in five American women are victims of rape or attempted rape and a recent Pentagon survey finding that one in four active-duty service members have been sexually assaulted. The problem, she concluded, could not be so pervasive unless there was a rape-enabling culture treating sex as "something men get-and take" from women.