Students returning to class this fall, consider yourselves warned: This was the summer that federal regulators, state lawmakers, and college administrators got together for a threesome—incidentally criminalizing campus sex in the process.
The debate over campus sexual assault—how much it happens, and how to handle it when it does—has been heating up for a while now thanks to increasing federal intervention, but the latest round of action kicked off at the end of spring, when the Office of Civil Rights at the Department of Education (OCR) identified 55 colleges under investigation for failing to report and handle rape allegations. The message to colleges from the federal government was do something, or else.
Colleges are definitely responding to the pressure. Consider Occidental College, which pursued a rape case against a male student for having drunken sex with a female student. Investigators determined that the encounter was consensual, but administrators pursued sanctions anyway, insisting that the female student's consent was invalidated because she had been drinking. The argument makes no sense—if all drunken sex constitutes rape, then both the accused and the accuser are equally guilty. Nevertheless, the male student was expelled.
Hashing out which person is the initiator of sex and which person is the consenter can be tricky from a legal standpoint. College hookups happen under the influence of substances that impair judgments, and what takes place between the sheets is inherently shrouded from public scrutiny.
But that didn't stop the California legislature this summer from trying anyway. Responding to the federal government's call to do something, or else, state lawmakers approved SB 967, a bill that would force state universities to establish a stricter definition of consensual sex: one that requires the initiator to acquire "unambiguous, informed, freely-given, and voluntary" permission.
That part may not sound so bad—sex, after all, should be absolutely consensual—but forcing college administrators to play the role of judge, jury, and career executioner for the accused students in these cases carries a whole host of problems.
The big one is that many colleges don't extend due process rights to students involved in the process. The accused are frequently denied legal counsel, the right to call their own witnesses or cross-examine the evidence against them, and they are convicted on the "preponderance of the evidence" standard, which only requires administrators to be 50.00001 percent sure of themselves. This is the standard the federal government insists upon and California's bill requires. Students found guilty under that standard are often suspended for years or expelled outright, meaning that whatever money they spent on tuition is wasted. And since other colleges are loathe to admit anyone with a campus sexual assault violation on his record, conviction in a campus court can end a person's college career forever.
Determining whether a student is guilty—and whether he deserves to have his future ruined by a conviction—is a heavy responsibility, and one college bureaucracies are in no way, shape, or form qualified to take on. But they largely have no choice: OCR has repeatedly made clear that it considers campus sexual assault to be an epidemic requiring a firmer hand from the universities. Universities that do not implement DOJ "suggestions" could face a loss of funds or federal lawsuits.
Continuing to police rape without respect for due process is also generating lawsuits, however. In a recent case, University of Cincinnati student Ethan Peloe was convicted of rape by the campus judiciary, even though the police who had investigated his case believed him to be innocent and opted not to charge him with any crime. Now Peloe is suing the university for gender discrimination. The judiciary proceedings, as outlined in his lawsuit, read like a trial from a dystopian novel: Adjudicators repeatedly refused to let Peloe present evidence that he believed would exonerate him—including "results of a rape kit examination, security camera footage, and witnesses' accounts"—and lied to him about whether they had consulted investigators. In fact, as the lawsuit claims, campus police officers avoided the trial out of fear that the university would retaliate against them for helping Peloe.
Caroline Kitchens, a senior research associate at the American Enterprise Institute who frequently writes about the travesty of campus sexual assault trials, told Reason that colleges, at the federal government's insistence, are codifying "a sexual double standard whereby all men are presumed rapists."
"In an effort to address sexual assault, college campuses are on the verge of entering into an Orwellian nightmare in which all sexual encounters are policed and students accused of misconduct are guilty until proven innocent," she said.
Yet the federal government continues to nod colleges in that direction. A pair of bills introduced in the U.S. Senate just before August spell out all the services to which victims are entitled, but say nothing about due process for the accused. Sen. Barbara Boxer's (D-Calif.) bill, for instance, would only require colleges to assign "advocates" to the accusers—the accused would have no guarantee of representation.
"I'm a liberal, I'm a Democrat," Sherry Warner-Seefeld, an advocate for due process in higher education, told Reason. "I'm a feminist from way back, and I fought for gender equity. That did include women's equity at the time, but I still have the same feelings about gender equity today, and in this fight, I'm concerned about male equity."
Warner-Seefeld is president of Families Advocating for Campus Equality, a new organization that wants to provide support to accused students while advocating a reassertion of basic due process rights in campus sexual assault proceedings. She started the organization with two other women. "We are literally three moms," she said.
They are also mothers to boys falsely accused of rape, and they have seen firsthand what comes of making rape an academic matter: Male students face kangaroo courts and outcomes preordained by federal mandates. It's not right, said Warner-Seefeld.
"We are trying very, very hard to stay that middle ground and say campus equality and due process belongs to both genders," she said.
Whether FACE and other civil libertarian groups can turn the tide remains to be seen. But for now, the summer when the government criminalized campus sex is likely to give way to an autumn when everyone will sue everyone else over what happens behind the closed doors of college dorm rooms.