Affirmative Consent

'Our Strategy for Dealing With Rape on College Campuses Has Failed Abysmally.'

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Tiffany Education Center
Public Domain

It's the truth. And Jed Rubenfeld, a professor of criminal law at Yale Law School, is preaching it in the pages of The New York Times.

In a lengthy weekend op-ed, Rubenfeld argued that colleges deal with rape foolishly when they hold due-process-free tribunals that merely result in the expulsion of the accused. That's both too harsh a sentence for a student convicted under the shabby evidence standard that colleges use and also too lenient a sentence for an actual rapist—who is free to continue harassing other women.

Instead, colleges should always go to the police. The normal criminal justice system is vastly better equipped to investigate and adjudicate rape, wrote Rubenfeld:

Moreover, sexual assault on campus should mean what it means in the outside world and in courts of law. Otherwise, the concept of sexual assault is trivialized, casting doubt on students courageous enough to report an assault.

The college hearing process could then be integrated with law enforcement. The new university procedures offer college rape victims an appealing alternative to filing a complaint with the police. According to a recent New York Times article, a "great majority" of college students now choose to report incidents of assault to their school, not the police, because of anonymity and other perceived advantages.

But the danger is obvious. University proceedings may be exacerbating the fundamental problem: the fact that almost no college rapists are criminally punished — which they will never be if the crimes are never reported to the police. Nationwide, the Department of Justice states that about 35 percent of rapes and sexual assaults were reported to the police in 2013. That's not enough, but it's a lot better than the 5 percent reported by college women.

Rubenfeld is also skeptical of university administrators' attempts to redefine or codify consent definitions, and he cites several examples of colleges that use misleading or flat-out wrong standards. While nearly everyone accepts that all drunken sex is not rape, some administrators maintain that consent is impossible if alcohol has been consumed. That's a ridiculous notion that necessitates viewing all men as sexual initiators, even though the decision to have sex is often impossible to trace so neatly to one party or the other.

On the subject of drunk sex, Rubenfeld raises a point that I have invoked many times recently about rape and the drinking age. The relevant section:

A vast majority of college women's rape claims involve alcohol. Not long ago, 18-year-olds in many states could drink legally. College-sponsored events could openly involve a keg, with security officers on hand to ensure that things didn't get out of hand. Since 1984, when the federal government compelled states to adopt a drinking age of 21, college alcohol policies have been a mockery. Prohibition has driven alcohol into private spaces and house parties, with schools largely turning a blind eye. When those spaces and parties are male-dominated, it's a recipe for sexual predation. Such predation has been documented: Attending fraternity parties makes women measurably more likely to be sexually assaulted.

We need to stop pretending that the campus rape epidemic demands an infantilizing, legislatively-enforced re-education about consent. College students are grown-ups; they don't need college administrators or the government to hold their hands while they ask whether it's okay to initiate each and every individual sex act.

At the same time, we need to treat rape like a serious crime deserving a full police investigation and trial. We should also recognize that insane alcohol laws contribute to the problem and aren't worth defending. I join Instapundit's Glenn Reynolds in hoping the new Republican Congress revisits them.