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But guess who else feels victimized by the university? Gambill's ex-boyfriend, who shared his side of the story (anonymously) with the student paper, The Daily Tar Heel. He was suspended immediately after the accusation and forced to undergo a psychological evaluation that he says included invasive, humiliating questions about his sexual activities with Gambill. Portions of this evaluation were apparently shared with his accuser at the hearing, in violation of confidentiality. After being cleared, the young man had to submit to additional evaluations before the university agreed to re-admit him, delaying his return to school by six months. He has had to adjust his class schedule to comply with an order from school officials to stay away from Gambill. The ordeal, the student told the paper, caused him to develop post-traumatic stress disorder.
Only Gambill and her ex-boyfriend know which one of them is the real victim-and maybe not even they do, given how past events are filtered through subjective perceptions. Yet from the perspective of the Department of Education, which is pursuing Gambill's civil rights complaint against the university, her grievance is the only one that counts.
Federal involvement is likely to exacerbate the pro-accuser bias on many college campuses. In addition to the lower standard of proof, the recent Department of Education/Department of Justice blueprint for colleges mandates training for administrators, faculty, and student jurors involved in handling of sexual assault complaints. In practice, the training often amounts to indoctrination in the "correct" view of sexual assault. In 2011 FIRE publicized Stanford University's reading materials for student jurors (mostly excerpted from the book, Why Does He Do That?: Inside the Minds of Angry and Controlling Men, by domestic violence specialist Lundy Bancroft). Among other things, students were advised that acting "logical and persuasive" in one's defense was typical of an abuser and that one should be "very, very cautious in accepting a man's claim that he has been wrongly accused" since "the great majority of allegationsâ€¦are substantially accurate."
In the midst of a moral panic, the rights of the accused-including the wrongly accused-count for little. In May The Daily Princetonian, Princeton University's student daily, ran an editorial urging the school to change its standard of proof in sexual assault cases from "clear and convincing evidence" to "preponderance of the evidence." Noting that "sexual assault is unique among cases requiring on-campus discipline" in its lack of corroborative evidence and its he said/she said nature, the editorial board concluded that the "clear and persuasive" standard might be appropriate for charges of theft, assault, or drug use, but it is "inappropriate in the case of sexual assault."
The wheel has come full circle: Forty years ago, feminists argued that rape should be treated the same as other crimes against persons. Today the progressive position appears to be that since rape is harder to prove than other crimes (particularly when it is defined so that it does not require physical coercion, threats of violence, or incapacitation), it should receive special treatment.
When schools try to mitigate absurdly broad redefinitions of sexual assault with a nuanced approach to crime and punishment, they are liable to find themselves accused of coddling rapists. At Yale, for instance, a student may be sanctioned if he (or she, theoretically) fails to obtain "clear and unambiguous consent to each activity at every stage of a sexual encounter." In August the university's report on its handling of sexual misconduct caused an outcry in the feminist and left-wing blogosphere with the revelation that, of six students found guilty of "non-consensual sex" since the start of 2013, one had been suspended for a year, one placed on probation, and four given a "written reprimand" and encouraged to seek counseling. Yale activists such as law student Alexandra Brodsky and feminist blogs such as Jezebel assailed the university for hiding rape behind euphemistic doublespeak and letting off rapists with a slap on the wrist.
In September, to clarify its policy, Yale released a memo with several hypothetical scenarios explaining what action would be taken. While some of the "non-consensual" situations involved forced sex, others read more like a parody. In one vignette, "Ansley" rebuffs "Devin"â€Š's attempt to take intimate activity to the next level, saying, "I'm not sure"-but makes no objection, except for "inch[ing] backward," when Devin tries again later. (Devin's penalty, according to the memo, would range from multi-semester suspension to expulsion.) In another, "Kai" starts to reciprocate oral sex without first getting a clear go-ahead from "Morgan" (which would evidently qualify for a reprimand). The activists' response to these absurd tales of woe was to complain that Yale was still treating sexual misconduct too leniently and to demand a policy, similar to the one recently enacted at Duke, making expulsion the presumptive penalty for such offenses.
While the immediate consequences of being found guilty by a campus tribunal are limited to academic or disciplinary sanctions, these cases are likely to have repercussions beyond the insular world of academe. A student's conviction of sexual assault, even in college judicial proceedings, goes on his college record and is thus apt to follow him to other schools and to be brought to the attention of prospective employers.
The consequences may go beyond the students themselves. The tendency to expand the definition of nonconsent to include ambiguous or fairly innocuous situations, and to hold rape accusations to a lower standard of proof, may "bleed out" from colleges into real life and the real justice system, especially if many law students absorb these ideas.
New Rules Needed
Women clearly have a particular vulnerability to sexual violence; while feminists have a tendency to exaggerate both women's fear of rape and men's sense of safety, there is a very real gender gap. This female fear is often invoked as a tragic consequence of rape culture and as proof of the urgent need to combat it.
But there is a paradox here. Women's fear of sexual violence is related almost entirely to the kind of attack-the proverbial stranger in a dark alley-that rape-culture ideologues tend to downplay as a stereotype and a distraction. (It is also relatively rare: Survey data indicate that a woman's lifetime chance of being raped by a stranger is around 2 percent.) No less ironic, the same ideologues who deplore women's lack of safety often scoff at safety precautions, insisting that we must "teach men not to rape" rather than teach women to avoid rape-as if there were a single crime that could be completely eradicated by "teaching" people not to commit it. (In October, Slate writer Emily Yoffe was excoriated as a rape apologist and a victim-blamer when she suggested that college women should avoid heavy drinking since there are sexual predators who specifically look for intoxicated women to exploit.)
In the end, the "rape culture" crusade is not so much about rape as it is about remaking sex. It stigmatizes assertive male sexuality and promotes a sexual norm in which every act must be negotiated in advance and undertaken with a completely rational, literally sober mind. In June a Kickstarter project to fund the publication of a dating guide for men was denounced as "rape-y" because preliminary excerpts advised men to "escalate" physical contact in an intimate situation without waiting for the woman's encouragement or advance approval-even though author Ken Hoinsky emphatically told his readers to back off at the woman's "no" and "try again at a later time if appropriate or cease entirely if she is absolutely not interested." After a backlash from feminist bloggers, Kickstarter scrapped the project and donated $25,000 to a sexual assault prevention organization. A few months later, the "rape culture" moral panic targeted Robin Thicke's hit song "Blurred Lines" (banned from several British university campuses) because of such lyrics as "I know you want it."
There is nothing wrong with challenging traditional rules of courtship or sexual norms. Many advocates of explicit consent insist they are trying to promote better communication and prevent hurtful misunderstandings. But it's one thing to make a persuasive case for more open communication about sex; it's another to make this a question of sexual violence, denigrating different views of sexuality as promoting "rape culture" and using the power of government to enforce one's preferred rules.
Since it's extremely unlikely that most college students will pause for a "May I?" before each intimate act, or stop having sex under the influence, the real outcome of the new campus policies will be to make virtually every sexually active male student vulnerable to a sexual offense charge if his partner retroactively reinterprets the experience as nonconsensual. Aside from the obvious unfairness to men, this is hardly a prescription for healthy interaction between men and women-or for basic respect for justice.
More lawsuits from men victimized by this warped notion of gender justice may, if successful, help restore balance. It is no exaggeration to say that this is one of the pressing civil rights issues of our time-one in which the federal civil rights watchdogs are on the wrong side.