Criminal Justice

'FIRE Is Sticking Up for Penises Everywhere'


In the September issue of Philadelphia magazine, Sandy Hingston explores "The New Rules of College Sex," formulated in response to the dual threats of Title IX complaints and loss of federal funding. Under those rules, sexual assault is defined as "any intentional sexual touching, however slight, with any object, by a man or a woman upon a man or a woman, without consent." The initiator (typically a man) must obtain explicit consent (preferably in writing?) for each step in a sexual excounter, and if the other person (typically a woman) has been drinking, all bets are off, since intoxication may render her incapable of consent. Hingston notes that Vice President Joe Biden's recent claim that college campuses face an epidemic of sexual assault, which is contradicted by data on reported cases, hinges on portraying women as victims when they do not see themselves that way. She objects to a view of rape that threatens to redefine the vast majority of college sex as a crime:

"If drunken hookups are defined as sexual assaults," a female colleague says, remembering her college days, "then I've been sexually assaulted 177 times."…

I have a college-age daughter. I tell Sokolow [a Title IX consultant] that if she got drunk and had sex with someone, I'd jolly well expect her to take responsibility. He isn't buying it: "She should have the right to strip naked and run through the streets and be unmolested. She didn't make that happen; the molester did."…

When I was in college, back in the heady '70s—when we battled hard for the Equal Rights Amendment, when Ms. magazine was still new—I and the women I knew got drunk a lot, and woke up in bed with guys we didn't always like or know. They never asked us, "Can I put my finger inside you?" We never accused them of sexual assault. We were, all of us, learning about limits and needs and wants. There were a lot of teachable moments along the way.

Those days are gone. I guess Joe Biden would rather talk about epidemics of sexual assault than a dearth of common sense.

Hingston notes that loose definitions of sexual assault are especially troubling in light of weak procedural protections for students facing disciplinary hearings, who typically do not have a right to representation. Under pressure from the Education Department's Office of Civil Rights (OCR), colleges are lowering the standard of proof in such cases to "a preponderance of the evidence" (a probability of guilt greater than 50 percent), preventing defendants from confronting their accusers, and allowing the appeal of acquittals. The upshot is that one of those "drunken hookups" can easily ruin a man's academic career (since other schools are understandably reluctant to admit students expelled for sexual assault) if his sexual partner or a university official with knowledge of the encounter files a complaint. Here is how the Title IX consultant interviewed by Hingston responds to criticism of this situation by the Foundation for Individual Rights in Education: "FIRE is sticking up for penises everywhere."

More on the OCR's campaign against due process here and here. In a classic Reason story from 1990, Stephanie Gutmann warned about the consequences of redefining sexual assault.