Sex Crimes

It Was a Wild and Crazy Summer of Criminalizing Campus Sex

"In an effort to address sexual assault, college campuses are on the verge of entering into an Orwellian nightmare."

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Sex
Zenon Evans / Reason

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.

These developments have largely been applauded by feminist writers at places like Jezebel and Slate. But not all self-described feminists are on board.

"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.

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73 responses to “It Was a Wild and Crazy Summer of Criminalizing Campus Sex

  1. Pet peeve time:

    Its not “Verbal or Written Consent”. Written consent is a form of verbal consent. What you mean is “Written or Oral Consent.”

    Carry on.

    1. You are technically correct–the best kind of correct.

    2. Yeah, I do enjoy yanking other attorneys chains on this one.

      Them: “We have a verbal agreement!”

      Me: “OK, send me a copy.”

      Them: “You idiot, I said it was a verbal agreement!”

      Me: “Right. That’s what I thought you said. Did you mean its an oral agreement?”

      Them: “Fuck you, asshole.”

      Me: [smiles unpleasantly]

    3. My dictionary gives “oral” as a synonym of “verbal”. Sorry.

      1. Your dictionary is defective. But then so are most. Verbal means “in words.” Spoken or written or signed.

        1. But then, use of the word “oral” on campuses is likely to lead to trouble.

        2. Yep, it means that too. But many words have multiple meanings – that’s just how language is.

          1. Indeed. But when working in the legal arena, precision is important.

            There are such things as nonverbal agreements, generally referred to as “implied” agreements.

            It matters, a lot, whether an agreement is nonverbal/implied, oral, or written. Don’t use ambiguous terms when talking about things like consent or contracts – it will only lead to trouble.

            1. Fair enough. I don’t do “law”.

        3. Your dictionary is defective.

          Or it’s a fully functional dictionary with poorly executed thesaurus features.

      2. My. Dictionary gives additional meanings for ‘oral’.

        1. While getting correct; What is gender equity? Can you be less than 100% female or 100% male.

          I think there exists a war on women to not allow them to have drunken sex.

  2. On the one hand, I’m glad I’m out of college and don’t have to deal with this shit.

    On the other hand, I do intend to have children one day, and shudder to think what they’ll deal with when they go to college.

    Seriously, though, if you call virtually anything a male does rape, then it trivializes actual rape. Is this the outcome people want?

    1. Seriously, though, if you call virtually anything a male does rape, then it trivializes actual rape. Is this the outcome people want?

      I don’t think they care. I think they think that their long-term project of allowing women to exist in a state of infantilized victimhood, where they’re never responsible for the consequences of their own poor decisionmaking and thus never have any cause to feel guilt, shame, or regret, is more important than abstract concerns like taking rape and sexual assault seriously.

      1. I agree, especially with the uproar over the drug-detecting fingernail polish a few days ago. Any attempt to empower women is seen as suspect and an attempt to blame them.

      2. If they have to trivialize rape to criminalize men, well, that’s a price they’re willing for other people to pay.

      3. I think you’re correct insofar as feminists don’t care about the trauma of women who have been and will be raped. As a society we do a pretty good job of tracking down, convicting, and seriously punishing men who rape women where there is no reasonable doubt regarding the victim’s consent and whatnot. Of course, this deprives feminists of a complaint, and we just can’t have that.

        The push on college campuses amounts to prohibiting and punishing the way that most if not all people interact and have heterosexual sex. I simply don’t know anyone of any political persuasion who solicits or gives bone fide, unambiguous “affirmative consent” (which, recall, can be immediately and abruptly withdrawn at the election of the women at any time*) at every juncture in a sexual interlude. At first this seems like an oversight, or perhaps overzealousness on the part of feminists, however it is not. People on campus or off are simply not going to stop having heterosexual sex, but virtually all acts of heterosexual sex will be prohibited ? therefore women will always have powerful leverage to capriciously report an otherwise lawful and unobjectionable encounter in the past, after which the man in the encounter will be presumed guilty and forced to submit to a kangaroo court to give the gloss of process to his ruin on the strength of one scorned woman’s say-so. It would be like living in the Village of the Damned for four years.

        1. * On multiple occasions I have had discussions with feminists who believe that a woman can withdraw consent to intercourse mid-thrust, and any and all contact from the time that the “stop” leaves a woman’s lips (or, even more ominous, non-verbal withdraw is made) constitutes rape no different than the scary man jumping out from behind the bushes with a knife and forcing himself on the unsuspecting coed on her way to the Library.

    2. Yeah, pretty much if by “people” you mean the DOJ and college bureaucrats.

      1. Yeah, should’ve qualified what I meant by people. For some people, it is absolutely what they want.

    3. Yes? Almost none of these fuckwits have actually been raped. They’re narcissists who crave the sympathy that actual rape victims get, and think that if they define rape down, they can get some of that sympathy for themselves to find some emotional validation in their worthless, empty lives.

      Yes, it won’t turn out like that if they actually do succeed in defining rape down. But we’re talking about people who think that giving women tools to thwart rapists is terrible and supportive of rape, and that the most reasonable and appropriate solution to the problem of rape is to simply make sure that every single person (well, man, in their view) abstains from rape, which can be done with “teaching”. You know, morons.

    4. On the other hand, I do intend to have children one day, and shudder to think what they’ll deal with when they go to college.

      I have kids, not college age yet, and worry about the same thing.

      However, due to the rising standards of public education and the haemorrhaging of public money on college education administration. I also see the value of college education dropping and demand for various niche skills being exceptional.

      Additionally, while I may not like the fact that illegal immigrants are breaking the law by coming to this country, I love the fact that they are literally eroding the existing bureaucracy and only appear to be thriving as a (sub)culture.

      As long as my kids can do the standard “adult basic” stuff; weld, shoot, change oil, frame a house, balance their accounts and calculate interest (by hand, with a spreadsheet, and with a computer but no spreadsheet), etc., etc. I’ll be more than content.

      I think attending college is one of those flawed cultural imperatives that has had its day. It’s a little like requiring every horse be trained to race in the triple crown shortly before the invention of the automobile.

  3. Are kids in college that good looking, or are they just desperate for sex?

    I was in college (earning graduate degree) as recently as 2009. Most women were either married or didn’t look like girls in the CW shows.

    1. A 19 year old kid on his own for the first time and under self-imposed pressure to live up to all the stories he’s heard about campus sex will hit on anything with a crease in the middle. Actually, most 19 year old kids will hit on anything with a crease in the middle anyway.

    2. The closest supermarket to my home also happens to serve a nearby university. Go in there any Friday or Saturday night, and while you’ll see your fair share of three-baggers and skanks, there’s no shortage of eminently fuckable coeds.

  4. Funny op-ed piece today in WSJ on going back to college. Barely scratched the surface on these issues. Seems to me that colleges should be handing out Antabuse and/or chemical castration drugs for all males on campus and Antabuse for all women.

  5. It’s very sad when “reason” constantly stoops to the idea that they can pick up young votes by how much they “like” young sex acts……even though anyone in their right mind knows that the candidates the Kochs, Reason and Cato support mostly (80% plus) are spending their time making certain women have no access to birth control or family planning.

    You won’t find articles here with honest titles like “Kock candidates want to make female college students have children and raise them to adulthood because they like sex”…..

    1. Yes, they are trying their damndest to ensure that no woman has $50 to spare in her budget every month.

      1. That, and making sure they have to spend it anyway.

        1. So it’s libertarians and the right who think people exist in order to be looted by the state, and thus seek to constantly raise their taxes?

          You’re gay and a liar.

          1. I think the inference was that having a product (rape drug detecting nail polish) voluntarily commercially available by a free capitalist market is just like stealing.

    2. I was tempted to feed a troll, but seeing not even a vague reference to the facts or thesis of the article I thought better of it.

    3. I really want reason to create an animated GIF where Captain Kirk shouting Koooooooooooooch!

      🙂

    4. Bad troll is bad

      3/10 wasn’t even upset.

    5. “Access.” I don’t think it means what you think it means.

      Now stop denying me “access” to a Maine lobster for lunch.

  6. “…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.”

    Perhaps the premise that colleges should have much business in handling rape allegations is faulty? That maybe they are not very well equipped to handle such matters.

  7. “…college campuses are ON THE VERGE of entering into an Orwellian nightmare.”

    Bullshit.

  8. I mentioned this on another thread with all the ingenuity going into useful apps, there should be a college rating app for college age kids so they can exchange information on abusive and speech strangling colleges. Let the students start posting reviews and making commentary specifically on college rules. Perhaps have a group of attorneys rate free speech and other basic rights.

    These kids are being slowly boiled, time for them to hop out of the pot.

  9. I’m just waiting for the first time some jock gets drunk, has sex with a sober stalker, and then sues her for raping him.

    -jcr

  10. If mere sex while under the influence of alcohol is rape then I raped/was raped in college more times than I had sex. I must be a psychopath and/or PTSD case.

    1. if you look on tumbler, That is rape to them.

      1. The new saying is “too drunk to drive, too drunk to fuck” although this approximates absolutely no legal standard for the crime of rape/sexual assault now in existence. The benefit to feminists in teaching women these extralegal definitions of rape is that it beefs up the polling numbers of women who claim to have been raped, and makes women feel like victims and allied with feminism rather than simply drunk and loose.

  11. For some reason, I’m reminded of this MST3K episode: The Violent Years

  12. Remember when colleges and the left loved sexual liberation and weren’t more prudish than the religious right? I certainly don’t.

    1. In my lifetime progressives have always been the party of sex is rape. But then everything is twisted in their ideology, theft is sharing, not paying for others BC is denying BC, Militarized police are good, but the things they do are bad. It’s all nonsense.

      1. Right! Because, after all, we lefties forced the Slave States like MO to become more segregated and to militarize their police! We lefties asked for all the wars and the military/security state buildup.

        What is it- backwards bizzarro day again?

        Repeat after me…..”the right and the neocons have been the primary backers of wars and violence and the security state since about 1965″

        Heck, remember, Goldwater wanted to drop nukes in Vietnam. Nixon almost followed through with it…..

        At least we have had the discussion about war on the left – on the right it’s a given. Stand before the flag and the cross and kill for God….

        1. Were you in a coma circa 2000 through 2003? The Democrats clamored over one another to be seen voting for both wars prosecuted by the “neocons.” Numbered among them are the current Secretary of State, last Secretary of State and putative Democratic nominee for President, and current Vice President and fallback choice of Democratic nominee for President.

          That they were all venal characters who denounced their votes on the discredited pretext that they were duped into their votes rather than chasing Howard Dean to the Left in 2004 is not a sufficient excuse.

        2. We lefties asked for all the wars and the military/security state buildup.

          *cough*LBJ*cough*

  13. By the definitions of consent going around these days I’m not sure I’ve ever had consensual sex. I’m sure people know when they write these laws they’re complete nonsense, but they still pretend they aren’t cuz tThey want to say they’re tough on rape or something.

  14. Rape is a crime. I’d like the real police to be included not the PC police.

    1. Real police, a presumption of evidence, right to confront witnesses, and the jury system don’t yield the “correct” result.

  15. One of you bright attorney types around here needs to create a ‘legitimate’ fuck contract that is 100% legal and protects fuckers from rape liability. Reason should post the contract once they vet it.

    This contract shall be printed on t-shirts or a dual-fold biz cards which can then be signed in the heat of consent. Keep multiples copies on board for orgy nights.

    I’m not jesting. At all. Protect yourselves out there in the big world full of STD’s and rape-claimers, boys.

    Think condoms and contracts. Sex is moving into the Age of Ironclad.

    1. It wouldn’t matter because per the feminists who are running this racket, consent can be withdrawn at any point and any contact thereafter constitutes rape/sexual assault. “I signed it, but then changed my mind” is enough for the administrators to pin their ears back and nail a scalp to the wall.

      1. If a woman signs a consent-to-be-penetrated contract she’d be laughed out of rape court if she claims she changed her mind the next day.

        The contract could include all sorts of riders including one stating “I am signing this contract while NOT under the influence of alcohol or drugs”. Check.

        The absurdity here is of Everest-like proportions but if they want consent let’s allow it to be documented for all the court to see.

        1. See, even in this absurd context there is yet more depths of absurdity to be explored – she would not be laughed out of rape court in such an instance (or, now), and that ought to be very scary to you.

          1. Then there is no point of consent at all if consent can be reversed after the fact.

            The bottom line here is sex is just the net to trap the man and ruin his life if said deranged female so chooses.

            This has nothing to do with mitigating rape and everything to do with empowering mentally-unstable women to destroy innocent people simply because they are male.

            1. “Then there is no point of consent at all if consent can be reversed after the fact. The bottom line here is sex is just the net to trap the man and ruin his life if said deranged female so chooses.”

              By Jove I think he’s got it!

              1. Hehe… I had it a while back, deario. Like many years back.

        2. “The contract could include all sorts of riders including one stating “I am signing this contract while NOT under the influence of alcohol or drugs”. Check.”

          alas, i fear you may be wrong about that.

          she could claim that she was drunk, therefore impaired, therefore unable to gauge impairment as judgement is the first thing to go, therefor unable to sign a valid contract.

          she could claim it was misrepresented etc and that she was too impaired to know.

          if one cannot consent to sex while drunk, one cannot sign a valid contract either, even one attesting to sobriety.

          i grant you that having signed such a thing would make a case more difficult, but do not bet against the legalism here.

          such a contract could very easily be deemed inadmissible, even in a real court. a school could just toss it out at whim.

          a jury would never even know it existed.

          1. also note:

            consent can be revoked at any time.

            even a fully valid, notarized, witnessed contract with a certified BAC reading is not really protection.

            if someone she said “stop” afterwards, that’s it.

            note that this is actually a legitimate issue in that if she does say stop, it means stop.

            but anyone could claim they had done so.

            this is just consent, not a contract with strict performance requirements.

            you can orally revoke such consent at any time.

      2. Apparently….

    2. One of you bright attorney types around here needs to create a ‘legitimate’ fuck contract that is 100% legal and protects fuckers from rape liability.

      I think that’s called a “Marriage License”.

      1. Even that’s not enough.

      2. Erm, a lot of fucking used to go on before marriage. Remember that? When people could expect to reasonably fuck without feminists breathing down their sweaty necks.

  16. Any guy who boffs a babe,better have written permission.

    1. I’m the bureaucrats will also require a written, a full dissertation of the event with details so they can hit the broom closet after doing nothing all day.

  17. the point here seems to be to criminalize everyone.

    i mean, but hr standard of “intoxicated people cannot give consent” what % of college students are rapists? 70%?

    this seems like an incredibly poor and authoritarian response to the difficulty faced in determining consent. often, such things are a he said/she said.

    but, if you establish an arbitrary standard that makes much consensual activity criminal, then you have a fall back catch all.

    you can say “she was drinking, you’re outta here” more or less at will.

    this allows for capricious application of justice while adhering to the letter of the rules.

    of course, as we see in the case of occidental, this gets applied unevenly.

    basically, they would like to have all the students in a position where they can, virtually by fiat, expel anyone for an activity that is mostly not a problem.

    it sets them up as despots, able to drop the axe at will.

  18. If we could just bring in the toilet safety administration to put cameras between all women’s legs, then the trifecta will be complete.

    I love how feminists, in their stated mission liberate women from the shackles, embrace heavy handed government at every turn.

    To say there is gender inequality is to say there is income inequality or racial inequality. None of them exist in free market, free societies and they don’t even exists in our screwed up former somewhat free country.

    This shithole is as good as it gets so stop bitching before you really see what the government can do for your disadvantaged group.

  19. What if your pen doesn’t work because you are too drunk?

  20. I love Big Brother.

  21. typical –
    women come into a male dominated field then expect to be treated different from men and change all of the rules.
    happened in the military, happening in colleges and univerities and in professional sports.

  22. If this article is correct, then it appears that the US is enacting Sharia law on campuses. Not a judgement, just an observation. But interesting that it is ok for US campuses.

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