Tag Archives: campus sex

Double Jeopardy for the Accused at Duke

Some colleges seem so eager to find males culpable of sexual offenses that they insert a provision in campus student-discipline rules allowing a form of double jeopardy. Ron Gronberg reported yesterday in the Durham Herald-Sun that Duke University changed the  wording in the Duke Community Standard in Practice (P.47).  Gone is the right of the  appeals panel to throw out a case against the accused on appeal. Now such a case will revert to the Office of Student Conduct, which can opt to continue the case, despite the finding in favor of the accused.

Gronberg reports: “On its face, the wording sets up the theoretical possibility a student could be accused of misconduct, be found responsible, appeal, win on appeal and then face a never-ending string of new hearings, new findings, and new appeals.”

How Colleges Promote Censorship and Undermine Free Speech

In Brave New World, Aldous Huxley writes: “There isn’t any need for a civilized man to bear anything that’s seriously unpleasant.”  In his sanitized future, general happiness and social stability are achieved not via threats of legal action but rather through perfect genetic and behavioral engineering, endless indoctrination, anodyne feel-good phrases and drugs, and organized outlets for intense emotion and lust.  “That is the secret of happiness and virtue–liking what you’ve got to do,” explains Huxley’s Director of Hatcheries (where test-tube babies are produced).

Alas, we’re not there yet, hence the recourse to crude legal instruments backed up by moral grandstanding is still essential. Given the pesky First Amendment, however, thus far valid in contemporary America despite ever more frequent attacks, not just any claim to hurt feelings can be used to shut down others’ speech. Learning which words are most effective in preventing the expression of views and comments we don’t like is, therefore, a crucial step if one wants to be successful in ushering in the utopian future.

In more legalistic terms, offending words and gestures can be said to deprive college women of the right to an equal education, thus constituting illegal discrimination. That is the language of Title IX of the Education Amendments of 1972, prohibiting discrimination on the basis of sex in educational programs that receive federal funds.  Expanded over the years to include such categories as “hostile environment harassment,” Title IX turned out to be a godsend to those determined to go through life free of unpleasant words, vulgar jokes, suggestive glances, and, as has become clear, ideas and viewpoints they dislike. In today’s academy, insisting that one feels unsafe or threatened is a routine and usually effective opening move in attempts at controlling others’ words and attitudes.

A recent example:  A student group called Feminists United has filed a Title IX lawsuit against the University of Mary Washington, alleging that by declining to ban access to Yik Yak, the school failed to protect them from disagreeable posts on the anonymous app.  The requisite linguistic expertise was on full display, with the suit referring to the “overtly and/or sexist/threatening” anonymous messages on Yik Yak, which allegedly created a “hostile environment” for the group.

True, there are slight glitches in the group’s charges. The Supreme Court standard (established in the 1999 case Davis v. Monroe County Board of Education) stipulated that harassment becomes discriminatory conduct for which schools are liable only when it is “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.”

Susan Kruth, staff attorney at the indefatigable Foundation for Individual Rights in Education (FIRE), a non-partisan organization defending the First Amendment on American campuses, has explained why the university in the Yik Yak case did nothing wrong.:

Universities should respond to true threats and to serious allegations of sexual harassment, and they can provide non-punitive resources to people who encounter offensive speech. But to the extent that remarks are merely sexist or offensive, a public university must recognize that such language is protected under the First Amendment and decline to take unlawful steps to censor it. Throughout their complaint, the plaintiffs conflate alleged threats and a pattern of conduct that they claim deprived them of educational benefits with remarks or behavior that made them uncomfortable.

In commenting on the lawsuit recently, another FIRE staffer, Communications Manager Daniel Burnett, cited the 2003 Supreme Court case Virginia v. Black, which defined  “true threats”—valid  exceptions to the First Amendment–as “those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.”

However, because courts have regarded intimidation as a type of true threat, it becomes advantageous for complainants to assert that they indeed were placed in fear of bodily harm or death. These magic words then set in motion a series of potentially draconian consequences, with the alleged perpetrator usually denied due process as schools, trying to save themselves from lawsuits or perhaps joining in with current campus orthodoxies, cave in to complainants in short order.  Ironically, it is only when sued by those charged with such offenses that universities are likely to rediscover the beauties of First Amendment protections.

A further irony of the current campus climate is that it is not speakers who incite the audience to violence but rather outraged students who threaten speakers and their supporters with violence. Yet universities are acting as if this potential for violence is a reason to prevent unpopular views from being heard – a perfect example of the power of a “heckler’s veto” to silence speakers in an arena where free and full discussion ought to be promoted: the university.

The result is that campus speech censors have a positive incentive to overreact.  They become agitated, claiming they feel unsafe, and threaten violence—in response to which administrators and even campus police rapidly capitulate.  And in the downward spiral that has been played out on numerous campuses over many years now, students ironically demonstrate ever greater physical and verbal aggression as they insist on their discomfort, vulnerability, and fear.

FIRE’s Susan Kruth has highlighted the role of the Office of Civil Rights (OCR), charged with enforcing Title IX, in promoting a redefinition of sexual harassment and sexual assault so broad and vague that it covers mere “speech or conduct of a sexual nature,” which in practice means whatever anyone finds offensive. The low standards encouraged by the OCR, in conjunction with colleges’ natural aversion to lawsuits, have resulted in the campus environment by now familiar to us all, even though these low standards would never carry the day in a court of law.

Apart from the unconstitutionality of such broad definitions, it is well worth asking whether we really want to live in a society where you can’t even make a sexual allusion or tell a joke, where any thoughtless, critical, or offensive comment—not to mention an unpopular viewpoint–can be construed as harassment.  According to many would-be censors, the answer is yes, provided it’s the other guy whose speech is to be curtailed, never mine.

One has to marvel at the touching innocence of so many American students. Lacking experience of what it’s like to live in a society in which some speech is prohibited ostensibly for the greater good, they apparently have little imagination of what such a society would entail. It seems not to occur to them (or to their faculty and administrative abettors) that the very vagueness of what could cause offense means ever more words will need to be avoided, just to be on the safe side.  Yet numerous accounts exist of all the countries around the globe where speech is or has been curtailed by the state and its institutions, with frightening and violent consequences.

It’s an old observation, but nonetheless routinely ignored by campus vigilantes.  More than twenty years ago, for example, FEMISA, an electronic list devoted to feminism, gender, and international relations, was discussing kicking out some men who posted comments women on the list didn’t like.  I was among the very few who argued on that list for the importance of free speech, which–in that particular context–meant tolerating the messages of male contributors whose words were making them unpopular.

Excluding those whose views we did not like, I said, would soon enough lead to instituting censorship, public humiliation, shunning, ganging‑up‑on, etc., so as to protect the feelings and views of the rest.  I contended that even men thought to express obnoxious views should not be struck from the list, and that intolerance of ideas we dislike can quickly move into the prohibitory mode as if the people with whom we disagree had no right to speak freely.  This was a dangerous turn, as I knew then and have had confirmed numerous times since.

Kate Zhou, a political science professor originally from China, sent a long message to FEMISA supporting my position and explaining her own:

I am a feminist from China. For many years, sexist language was banned by the Chinese state (at least in the urban public sphere). Urban Chinese women were very much “free” from sexist verbal attacks. Many women including myself were willing to give up freedom for some degree of protection and security.  When everyone lost the freedom to speak, women’s independent voice was also gone. When women’s voices were silenced, women suffered.

 Yes, we did not have to be bothered by sexist language and pornography. But we could not complain that we had to line up two or three hours for basic food. We had to take less interesting work because we had to take care of the family.  It was not politically correct to complain about the double burden.

Is it clear to feminists that there has been no feminist movement in those countries that practice state censorship? My experience in China seems to suggest that women are often victims of any kind of censorship. As a feminist, I believe that women have the ability and power to defend their interests if given a chance. We should welcome complex and diversified debates. Difficult and complex debates help to train us. If we try to shut someone up because we dislike what he has to say, we just confirm our weakness and sexism.   [Kate Zhou, May 5, 1995].

Not surprisingly, FEMISA did not heed this sound advice. Instead, after more comments from argumentative men –who in some cases merely pointed out that women routinely posted hateful language about men, while men’s objections and rejoinders were treated as intolerable flames–the list owners barred various men from posting and moved the entire list onto “moderated” status, the better to control its discussions.

A similar case affected me directly. For nothing more than disagreeing with the predominant views on certain subjects on the Women’s Studies E-mail List (WMST-L), I (unlike virtually all the other 5,000 subscribers to that list) was placed on “moderated” status for ten years, so that no message of mine could be posted without first being vetted by the list’s overseers.  The result was, of course, as intended: Not eager to waste my time, I participated ever less on the list, to the point that my contributions decreased to almost zero. Why should anyone on the list have to be upset by divergent viewpoints?

Now, however, entire institutions do this dirty work for fragile feminists and others demanding protection from the verbal slings and arrows of people who dare voice dissenting views.  The state and its apparatuses must, of course, keep its grubby hands off our bodies, but please, please, let it control words, gestures, even thoughts.

We’ve come a long way, baby.

The NY Times Reveals the Stupidity of ‘Yes Means Yes’

On October 15, The New York Times published a balanced news story that inadvertently revealed the stupidity of “Yes Means Yes” policies. Those policies redefine a great deal of consensual sex and touching as “sexual assault,” and effectively require college students to engage in “state-mandated dirty talk” during sexual encounters (as one supporter of “Yes Means Yes” policies gloated). That potentially violates the Constitution, and such policies have led to costly lawsuits against colleges that have such policies.

By printing ideologically inconvenient truths, the Times allowed the stupidity of “Yes Means Yes” policies to shine through, rather than covering up their stupidity. This was remarkable for The Times, which usually can’t cover social issues or discuss the failures of big government without injecting a doctrinaire left-wing slant. It quotes the developer of the “Yes Means Yes” curriculum admitting that under “Yes Means Yes,” “you have to say ‘yes’ every 10 minutes” during a sexual encounter to avoid sexual assault charges, resulting in constant awkward communication:

What does that mean — you have to say ‘yes’ every 10 minutes?” asked Aidan Ryan, 16, who sat near the front of the room.

“Pretty much,” Ms. Zaloom answered.

It quotes a female student calling it “really awkward and bizarre”:

The students did not seem convinced. They sat in groups to brainstorm ways to ask for affirmative consent. They crossed off a list of options: “Can I touch you there?” Too clinical. “Do you want to do this?” Too tentative. “Do you like that?” Not direct enough.

“They’re all really awkward and bizarre,” one girl said.

This illustrates the complete unworkability of “affirmative consent” proposals like the American Law Institute’s draft sexual assault definition in its proposed revision of the Model Penal Code. That provision, modeled on “Yes Means Yes” policies, seeks to criminalize non-violent sex and romantic touching in society, (even if it was welcomed by the participants) unless there was “affirmative” consent in advance.

As Megan McArdle noted in The Atlantic, under that criminalization proposal, a great deal of harmless touching could well be deemed a crime, including this hypothetical provided by lawyers and law professors: “Person A and Person B are on a date and walking down the street. Person A, feeling romantically and sexually attracted, timidly reaches out to hold B’s hand and feels a thrill as their hands touch. Person B does nothing, but six months later files a criminal complaint. Person A is guilty of ‘Criminal Sexual Contact’ under proposed Section 213.6(3)(a).”

Unfortunately, there is one shortcoming in the New York Times story: it repeats the erroneous idea spread by the San Francisco Chronicle that all drunk consensual sex is already legally rape on campus under California’s “Yes Means Yes” law regulating campus sex. In reality, as defense lawyer Scott Greenfield, legal commentator Walter Olson, and I have all explained earlier, that law only bans incapacitated sex, not all drunk sex.  But The Times writes:

The “no means no” mantra of a generation ago is quickly being eclipsed by “yes mean yes” as more young people all over the country are told that they must have explicit permission from the object of their desire before they engage in any touching, kissing, or other sexual activity. With Gov. Jerry Brown’s signature on a bill this month, California became the first state to require that all high school health education classes give lessons on affirmative consent, which includes explaining that someone who is drunk or asleep cannot grant consent.

Although California’s “affirmative consent” law does not ban all drunk sex, some campus “affirmative-consent” policies do, invading the privacy of students (there is no logical reason why a married couple should not be able to have a glass of wine before sex). But California’s law does heavily intrude into people’s private lives, and create a climate of fear, as some of its most outspoken supporters readily acknowledge.

Ezra Klein is the editor-in-chief of the liberal publication Vox, and a leading supporter of California’s “affirmative consent” law. He says that it will define as guilty of sexual assault people who “slip naturally from cuddling to sex” without a series of agreements in between, and “create a world where men are afraid,” which he justifies by saying that “men need to feel a cold spike of fear when they begin a sexual encounter.”  He writes that California’s “Yes Means Yes” law…

“…tries to change, through brute legislative force, the most private and intimate of adult acts.It is sweeping in its redefinition of acceptable consent; two college seniors who’ve been in a loving relationship since they met during the first week of their freshman years, and who, with the ease of the committed, slip naturally from cuddling to sex, could fail its test. The ‘Yes Means Yes’ law is a necessarily extreme solution to an extreme problem. Its overreach is precisely its value…. If the ‘Yes Means Yes’ law is taken even remotely seriously it will settle like a cold winter on college campuses, throwing everyday sexual practice into doubt and creating a haze of fear and confusion over what counts as consent. This is the case against it, and also the case for it….  Men need to feel a cold spike of fear when they begin a sexual encounter…. To work, ‘Yes Means Yes’ needs to create a world where men are afraid.”

Office For Civil Rights Goes After Michigan State

However harmful the effects of the “Dear Colleague” letter to colleges and universities from the Education Department’s Office of Civil Rights, the document is a floor, not a ceiling, to OCR’s efforts to weaken campus due process. Resolution letters between OCR and various universities have allowed the agency to go well beyond the “Dear Colleague” letter’s terms. The Yale letter approved the “informal” process that allowed the university to brand a student a rapist without the accused having an opportunity to present evidence of his innocence. SMU and SUNY letters authorized the re-opening of cases where the accused student had been found not guilty, and oozed contempt for the idea that trained law enforcement personnel, instead of campus Title IX bureaucrats, should investigate sexual assault allegations. (Hans Bader has analyzed other resolution agreements, such as that with Tufts.) And the Montana letter envisioned a “blueprint” to weaken free speech on campus.

OCR’s most recent target, Michigan State, opens up a new inroad in the assault on campus due process.

Student A

A student identified only as “Student A” reported her alleged assault to the police, but not to the university, which instead learned about her allegations through media reports. The allegations weren’t very credible, as the police never filed charges. Nonetheless, when OCR discovered the charges, it told MSU that it needed to independently investigate the allegations. The university’s own investigation reached the same conclusion as the police—the accuser’s claims were not credible.

MSU nonetheless punished the accused students. As its investigation proceeded, the university forbade the accused students from contacting the accuser, and moved them out of their rooms to a different dorm, apparently well away from the accuser’s area of campus—which addressed the main concern the accuser said she had. The accused students apparently didn’t try to re-enter their old dorm, and the dorm to which they were reassigned was (according to the OCR letter) far away from their dining hall and their classes.

The accuser nonetheless cited the move in a Title IX complaint to OCR, apparently operating from the premise that students accused of sexual assault should be kicked out of all dorms, whether or not the accused students were guilty, and before any investigation had occurred. The accuser also claimed that the accused students violated a no-contact order—because, she reported, she had entered a university building and peered into a private tutoring room (through a glass panel in the door), where she spied the accused students meeting with a tutor. For reasons unexplained, she then stood outside the closed door for 30 minutes. There’s no evidence the male students saw the accuser until they left the room, but she interpreted their encountering her—after, to reiterate, she waited 30 minutes in a hall directly outside a room in which they were studying—as a violation of the no-contact order.

Even OCR conceded that this episode—which was, after all, directly initiated by the accuser—could not be held against the accused. That such an episode formed a key element of the accuser’s Title IX complaint demonstrates why reporters should be very skeptical when OCR reveals there’s a Title IX inquiry against a school, but refuses to release the actual complaint so outsiders can see the specifics.

Despite the record, OCR concluded that MSU had violated Title IX in its handling of Student A’s case, because the university took too long to conclude that Student A’s allegations were unfounded. This delay in initiating an investigation (based on a complaint the accuser never filed with the school) violated Title IX. OCR also expressed concerns about the structure of MSU’s policies, which at the time “required that a disciplinary hearing be conducted by the student judicial body before any action could be taken against a student accused of sexual harassment.” But the agency didn’t find a Title IX violation here, since by the time of the resolution letter, the disciplinary hearing requirement (which should, in fact, be an obvious form of due process) had been eviscerated.

To reiterate: Student A’s allegations proved unfounded, and she never filed a complaint through the university process.

The Campus Climate

As described in the resolution letter, Michigan State is a university whose leadership is obsessed with sexual assault. (According to Clery Act figures, there were 27 reported sexual assaults in 2013 at MSU, from an enrollment of about 35,000 students.) In 2013, the university initiated what it called a “No Excuse for Sexual Assault” campaign, designed in part, according to the OCR letter, “to debunk common myths regarding sexual assault.” MSU “distributed posters with images and messages intended to dispel various myths regarding sexual assault”; handed out shirts, stickers, buttons, and brochures with the slogan at various university events; developed a “No Excuse” Facebook page; created a special help line for students who wanted to report a sexual assault; and translated all of these materials into different languages—including Korean, Arabic, and Chinese. Students interviewed by OCR recalled these initiatives, along with material from the two required training sessions on sexual assault directed at all incoming students. (Athletes receive additional training.)

It appears that MSU’s training is creating some myths, rather than dispelling them. In a survey of all first-year and transfer students, 74.9 percent (incorrectly) said it was “false” that “someone can still give consent for sex if they are using alcohol or drugs.”

Yet to OCR, at Michigan State, a “sexually hostile environment existed for and affected numerous students,” while “the University’s failure to address complaints of sexual harassment, including sexual violence, in a prompt and equitable manner caused and may have contributed to a continuation of this sexually hostile environment.” The agency seemed troubled by findings (from campus surveys) that students would be more likely to report sexual assault to the police than to the university office that handles college investigations—as if, somehow, this is a bad thing. The resolution letter also went out of its way to include extraneous comments from random students: “OCR heard,” for instance, that a student had reported being raped at a fraternity shortly before the investigator came to campus. Well: Had she? Though this information presumably would have been very easy to ascertain, OCR investigators seemed uninterested in finding out. Another: “Many students referenced a walkway on campus near the river (the river trail) as being routinely referred to by students as the ‘rape trail.” This sounds ominous, until OCR informs us that this reputation dated from events in the 1970s or 1980s—that is, before 99.99 percent of MSU’s current undergrads were born.

Finally, OCR considered it a sign of a troubled campus culture that “only 7.4% of students were able to correctly identify the name of the University’s Title IX Coordinator,” while “71.5% of the students surveyed correctly identified the University’s head basketball coach.” That this churlish item made it into an official letter from a federal agency is astonishing. Given that miniscule percentages of students know the identities of even high-ranking academic bureaucrats, I wonder how many students know the name of the MSU provost, or the dean of the humanities (who are, after all, a far more appropriate comparison group for the Title IX coordinator). It’s remarkable, in fact, that according to the survey, around 2000 MSU students know the name of a mid-level bureaucrat at their university.

And what of the language that “71.5% of the students surveyed correctly identified the University’s head basketball coach”? Michigan State actually has two head basketball coaches: Tom Izzo, longtime coach of the men’s basketball team (including in 2000, when his team won the national title); and Suzy Merchant, who in her eighth year has emerged as one of the Big Ten’s best women’s basketball coaches. The 71.5 percent figure obviously refers to Izzo; by describing the university has having only one basketball coach, OCR—the agency devoted to gender nondiscrimination in athletics—chose to overlook the women’s basketball coach to make its political point.

Policy Abandoned

In early 2012, during the course of the investigation, MSU abandoned its previous policy (which required a hearing) that vexed OCR, and replaced it with a modified version of the single- investigator model. Student allegations of sexual assault are directed to the Office for Inclusion and Intercultural Initiatives (or “I3”). A I3 investigator speaks with the accuser, accused, and any other relevant witnesses, looks at any evidence the two sides present, and then produces a report deciding whether it’s more like than not that the accused is a rapist. The accused student has no opportunity to cross-examine his accuser—indeed, he doesn’t even see the evidence compiled against him until the investigator produces his report.

Once the I3 investigator produces his report, the accused student can appeal to a hearing—but under very circumscribed conditions. At the hearing, the OCR’s resolution letter noted, “neither side can ask questions of each other”’—and the accused student now has the burden of proof, a burden that goes well beyond the preponderance of evidence. He must “show that the I3 decision was arbitrary and capricious or had procedural problems.”

Such a one-sided procedure unsurprisingly has produced one-sided results. The OCR letter reported that MSU administrators indicated “that they have not yet had a case where the administrator or hearing board believed that the respondent met his or her burden of proof.”

In more than three years, then, MSU’s procedure has never resulted in an accused student being found not culpable once an investigator has decided otherwise.

OCR’s response? Michigan State procedures tilt too heavily—in favor of the accused. The agency found “that the University has not provided a prompt and equitable grievance procedure for the resolution of student and employee complaints alleging any actions prohibited by Title IX.” Investigations, OCR sniffed, take too long—at 90 days, with an additional 30 days to write.

OCR also faulted MSU’s policies for failing to unequivocally state that “the University will take steps to minimize the burden on the victim” regarding “interim measures while the investigation is pending.” But, of course, while “the investigation is pending,” there is no victim—the allegation is alleged, not established.

Unlike the SMU and SUNY letters, the Michigan State resolution letter doesn’t explicitly endorse any new, troubling policies. But it sends a most troubling message: even a university with MSU’s one-sided campus climate, and with MSU’s one-sided policies, will be found in violation of Title IX by the current OCR.

I Am Woman, Watch Me Wilt at Columbia

This article was published originally in Commentary

In February 2015, Columbia University—currently ranked the fourth most distinguished academic institution in the United States by U.S. News and World Report—announced that all its students, undergraduate and graduate alike, would be obliged to take part in a “Sexual Respect and Community Citizenship Initiative.” This “new, required programming,” the Columbia bureaucracy explained, was designed to explore “the relationship between sexual respect and community membership.”

Columbia’s students were given a menu of “participation options.” They could watch a minimum of two preselected videos about “rape culture” and gender identity and write a “reflection” about what they had learned. They could attend film screenings about sexual assault and masculinity and engage in a monitored discussion afterwards. They could create a “work of art” about the “relationship between sexual respect and University community membership.” Or, if they identified “as survivors, co-survivors, allies, or individuals who have experienced forms of secondary trauma,” they could attend workshops on “Finding Keys to Resiliency.”

Options in the “Finding Keys to Resiliency” module included a “mindfulness workshop” on “cultivating nonjudgmental awareness and being more present for their experience.” If attending the book launch for SLUT: A Play and Guidebook for Combating Sexism got one too agitated about female oppression, one could unwind at a “Yoga class for women” or a “knitting circle.”

To help students organize their required “reflections” on the videos, Columbia provided a set of questions suggestive of a New Age encounter session: “Kalin [a speaker in a video] shares his ‘why’ for passion around prevention education. What is his why? If you have a passion for prevention, ‘what is your why’?”

Another prompt suggested, “Reflect on the idea of manhood as discussed in this talk. What is the interaction of the constructs of manhood and power dynamics?”

The Columbia administrators were careful to avoid any possible misunderstanding that they themselves had failed to “cultivate nonjudgmental awareness” when it comes to college sex. One of the films on offer, The Line: A Personal Exploration about Sexual Assault & Consent, is “told through a ‘sex-positive’ lens,” according to Columbia’s promotional materials.

But Columbia’s “nonjudgmentalism” extends only so far. There was no give-and-take about participation in the Sexual Respect and Community Citizenship Initiative. The materials announced that it was “essential to arrive on time and participate” in the film screenings and discussions; late arrivals would not be admitted. Attendance at all events would be taken and passed on to the authorities. (This is a far stricter standard than Columbia applies to mere academic classes, where attendance policies are up to each instructor and usually lax.) Students who failed to log the requisite sexual-respect hours and complete the requisite sexual-respect assignments could be blocked from registering for academic coursework—or from graduating.

The rollout, which hit just as students were taking midterms, was a shambles. The computer portals for registering often didn’t work; many students couldn’t find participation options that were still open and that fit into their class schedule or that weren’t restricted to specific groups such as the “LGBTQ community.”

Despite the administration’s admonitions, some Columbia students decided that studying or researching their dissertation took priority over proctored discussions on “how gender affects relationships.” And so they neglected to do their sexual-respect assignments before the deadline ran out.

Columbia has now lowered the boom. In July, it started notifying the recalcitrant students that they were no longer in “good administrative standing.” Such a declaration is no small matter. Columbia treats a loss of administrative standing as seriously as an academic default; failure to repair one’s administrative standing can lead to dismissal.

By July, however, the options remaining to laggard students for demonstrating “sexual respect” had shrunk. No longer could a student view a webinar on “Transgender Sexuality and Trauma” or attend Momma’s Hip Hop Kitchen to satisfy the requirement. By now, in order to restore his administrative standing, the non-sexually-respectful student could only watch a recorded TED talk and write a “reflection” on his experience.

One of those recalcitrant students is a Ph.D. candidate doing serious archival research on a central figure in Western civilization. He reports that a number of his liberal graduate-student colleagues are also in trouble for not taking part in the initiative: “Even they felt the requirement was quite infantilizing and they had better things to do with their time, like actual academic work and teaching undergraduates.” That Columbia would elevate this “burdensome distraction” to the level of actual academic responsibilities, he notes, is “yet more proof that universities have lost their bearings entirely.”

But the initiative signals something more worrisome than just Columbia’s distorted priorities, according to this refusenik. “People like me might be losing the right simply to be silent, to be left alone,” he writes. “For the first time I, along with anyone else remotely willing to dissent, am not even being allowed to stay quiet and keep my opinions to myself. The initiative implies that agreement with the ideology—indeed, with a university-mandated code of sexual ethics—is actually required for attendance at this institution.”

In fact, the sexual-respect initiative never challenges the regime of drunken hook-up sex. To do such a thing, of course, would not be “sex-positive.” Rather, the initiative simply assigns wildly asymmetrical responsibilities and liabilities within that regime, consistent with the current practice of college administrations everywhere.

One of the initiative’s videos portrays two females drinking frenetically at a series of dance clubs; a male disengages one of them and escorts her to her dorm room where he has sex with her, allegedly non-consensually because she is too woozy from the boatloads of booze she consumed to offer proper consent. The moral of the video is that bystanders should intervene if they think that someone is too drunk to agree to sex with a stranger. Several additional interpretations come to mind. First, that university administrations should perform an “intervention” on the entire booze-fueled hook-up scene. Second, that females almost always have control over whether they end up in a mentally compromised state and should therefore be careful to avoid such a condition.

This second reading is unthinkable in today’s university, however, where the male is always responsible for regretted couplings, and the female a wilting victim. If this sounds like a resurrection of Victorian values, that’s because it is, but with one major difference: The modern college co-ed retains the prerogative of unbounded promiscuity (think: “sex-positive”), while also retaining the right to revert at will to a stance of offended innocence.

If Columbia felt compelled to take on the issue of “sexual respect,” it could have done so in a way that actually had intellectual value, had it remembered that its primary mission is to fill the empty noggins of the young with at least passing knowledge of mankind’s greatest works. Civilization has grappled for thousands of years with the challenge of ordering the relationship between the sexes and has come up with more sophisticated solutions than forcing males to watch videos on escaping the “man box.” Reading Baldassare Castiglione’s Book of the Courtier and Edmund Spenser’s The Faerie Queene would offer students an elegant take on sexual respect, albeit one grounded in the now taboo virtues of chivalry and chastity. If “relevance” is necessary, Mozart’s Don Giovanni might provide an example of “bystander intervention,” as when Don Giovanni’s aristocratic peers try to hustle the peasant girl Zerlina away from his clutches.

Mozart and his librettist Lorenzo da Ponte, however, were unblinkered about the male sex drive, something about which contemporary feminists can’t make up their minds. To recognize the specific hungers of the specifically male libido puts one dangerously close to acknowledging biological differences between the sexes. And it is precisely the force of the male sex drive that makes the norms of courtship and modesty so important for carving out a zone of freedom and civility for females.

Feminists, by contrast, are inclined to reduce the male libido to a political power play that has more to do with keeping females out of the boardroom than getting them into the bedroom. If gender “power dynamics” are really what lead men to aggressively seek sex, then a lecture from a TED “anti-sexism educator” might be relevant. But if, in fact, men pursue sex because they want to have sex, then a different set of strategies is called for. And one of those strategies might be to tell females in blunt terms: Don’t drink yourself blotto, take your clothes off, and get into bed with a guy you barely know. A sexual-assault counselor will never utter those empowering words, however, because preserving the principle of male fault is more important than protecting females from “rape.”

Naturally, the Columbia initiative embraces the conceit that college campuses are filled with shell-shocked female victims of rape culture who might collapse at any minute from the trauma of college experience. It is for them, explains Columbia, that the “Finding Keys to Resiliency” module was designed. The “Finding Keys to Resiliency” option allows “individuals who identify as survivors” and their “allies” to “incorporate wellness and healing into their day-to-day lives…from trauma-focused therapy to healing circles, from dance and movement to yoga and mind/body work.” If, however, you are a religiously conservative student who believes that premarital intercourse is  immoral (a few such closeted throwbacks still exist), you are out of luck. There is no module for you.

Predictably, the sexual-respect initiative created more trauma for Columbia’s wilting co-eds, but not always in the expected ways. One “survivor” was forced to wait 45 minutes outside her “survivors-only” workshop, only to be told that the workshop had been cancelled. “Sitting there waiting with no word caused me to panic,” she told the Columbia Spectator. The university had failed to provide her with a Victorian fainting couch.

The sexual-respect initiative undoubtedly triggered, to borrow a phrase, by Columbia’s most famous self-identified survivor: the recently graduated Emma Sulkowicz, otherwise known as the “mattress girl.” Sulkowicz belatedly claimed that she had been raped by a fellow student with whom she had been having intermittent casual sex. When Columbia, after a lengthy investigation, failed to find her alleged rapist guilty and expel him, she started carrying around a dormitory mattress in protest. This yearlong stunt, for which Columbia granted her academic credit, earned Sulkowicz rapturous accolades from the campus-rape industry and inspired scores of student imitators at other campuses.

If anyone needs the qualification of being a “self-identified” survivor, it’s Sulkowicz. After her alleged rape, Sulkowicz sent fawning emails to her alleged rapist, begging to get together again. Two days after the incident, Sulkowicz texted him: “Also I feel like we need to have some real time where we can talk about life and thingz because we still haven’t really had a paul-emma chill sesh since summmmerrrr.” A week later she suggested that they hang out together: “I want to see yoyououoyou.” Two months later, she texted: “I love you Paul. Where are you?!?!?!?!”

It took Sulkowicz six months to decide that she had been raped. Columbia was indubitably right not to find her sexual partner guilty, but it lost the public relations battle anyway over its alleged mistreatment of rape “survivors.” Thus, Columbia’s burgeoning campus-rape boondoggles, including the “Sexual Violence Response” unit and the new “Special Adviser to the President for Sexual Assault Prevention and Response.” This special adviser, a self-described decades long “social-justice advocate,” was soon elevated to executive vice president, heading a new Office of Community Life. From there, she designed the sexual-respect initiative.

I asked the Columbia administration how many students had lost their good standing as a result of not participating in the sexual-respect initiative. The chief of staff for the Office of University Life would only respond, “Because it was a University requirement, there was a high compliance rate with the program.” That may sadly be true. Columbia, after all, has power on its side. Even the most obstreperous comments about the mandate on the Columbia Spectator student-newspaper website were calling for civil disobedience within the confines of the initiative: “Make sure to record every word spoken. If just one feminist gets out of line: walk out, claim you were traumatized by a trigger and file a grievance….Demand to take your class with men, because women trigger your false rape accusation.”

The American university’s plunge into triviality may have become irreversible. To the narcissism of identity politics and victimology can now be added the quackery of “healing circles” and “mind/body work.” Columbia proudly claims that it has developed one of the first university-wide programs on sexual respect in the nation. Expect desperate one-upmanship to follow as our national descent into a new academic Dark Age accelerates.

The Odd Sexual Accounting at Yale

Since 2011, as part of its settlement with the Department of Education’s  Office for Civil Rights, Yale has published biannual reports that provide brief summaries of each sexual assault allegation at the university. (Yale is the only university in the country to have such an obligation.) I’ve analyzed each of these reports, issued by the office of Deputy Provost Stephanie Spangler.

Previous reports have revealed such items as: the “resolution” of a complaint against a professor, whose chair then would “monitor” him, even though he was never even informed of the complaint; odd investigations based on anonymous complaints—and sometimes with anonymous targets; concerns that Yale was using Title IX to trump university members’ free speech rights; the punishment of a student that even Yale’s due process-unfriendly system had found not culpable for the allegations against him; and students charged under a vague standard that included “emotional or economic abuse” by “roommates.”

The newest Spangler Report, covering all incidents in the first six months of this year, has just been released. The report is unusually bare-bones, even by Yale’s standards, but it does provide insight on two broader statistical debates about sexual assault on campus.

The 1-in-5 Claim

Between January 1 and June 30, six Yale undergraduates, or 0.2 percent of the 2678 female undergraduates at the university, filed sexual assault complaints with the school. (Three graduate students did so, and there were three complaints filed by non-Yale affiliates.) Of these complaints, only three were reported to the Yale Police Department. (None appear to have been reported to the New Haven Police Department.) Three more were formally handled through Yale’s University-Wide Committee (UWC), a due process-unfriendly procedure that I’ve written about previously. In sharp contrast to past years, zero cases were handled through informal complaints, a process that doesn’t promise an accused student the right to present evidence of his innocence. (This is the process that ensnared former Yale quarterback Patrick Witt.) But the newest Spangler Report suggests that the informal complaint procedure has effectively been replaced by the Title IX coordinator, from whom seven of the thirteen overall cases proceeded.

To place that statistic in context: the majority of sexual assault cases in the first six months of 2015 were handled by a Yale administrator whose job depends in part on keeping the university in OCR’s good graces, and without any procedural protections, of any type, for an accused student. (Under Yale procedures, an accuser can still file a formal complaint after working through the Title IX office.)

What of the sexual assault cases filed by undergraduate students? One of the six, the Spangler Report reveals, was simply withdrawn. So the university actually considered five undergraduate sexual assault cases in the first six months of 2015.

Of these five, one undergraduate was found culpable of “nonconsensual sexual activity.” His punishment? Probation and received a written reprimand—making it hard to believe the allegations he faced resembled what most people consider to be sexual assault. A second case couldn’t be substantiated by even the Title IX coordinator. A third accuser made a complaint (of “sexual touching”), identified the alleged party, but then withdrew the complaint—after which point the accused student nonetheless received a minor punishment (having to undergo “training on sexual consent”). A fourth case is still pending. The fifth involved a case in which the person accused, who was arrested by the Yale Police Department, wasn’t a Yale student.

This list confirms Spangler’s caution that Yale defines sexual assault in a way that “encompass[es] broad ranges of behavior,” since the university “uses a more expansive definition of sexual assault” than does the federal government (or the New Haven Police Department). Indeed, of the five January-June cases in which a Yale undergraduate alleged that another Yale undergraduate sexually assaulted her, none would appear to constitute “sexual assault” as the term is commonly understood.

According to the university’s own figures, then, the 0.2 percent sexual assault percentage is, if anything, too high for the January-June period. The commonly cited 1-in-5 statistic, on the other hand, would suggest that there should have been at least 67 complaints of actual sexual assault—instead of, at most, (depending on what precisely was charged in the case involving the non-Yale accused party) one. As we all know, sexual assault is an under-reported crime. But it would seem there are few environments nationally as favorable to victims filing complaints than the Yale University bureaucracy—which, after all, dramatically expands the definition of what constitutes sexual assault and still can’t get anywhere close to what would be expected from the 1-in-5 figure.

The Reports and False Rape Claims

A robust debate (from which I’ve largely abstained) exists over the question of what percentage of college rape reports are false. But clearly some percentage are false; even the now-discredited David Lisak conceded the falsity of around 6 percent of rape claims. It’s plausible to infer that the percentage of false claims on college campuses would be higher than in the general public. A situation in which communities of 18- to 22-year-olds living together might provide motives for false claims that are less common elsewhere. (Consider the Amherst case: making an almost certainly false claim gave the accuser an excuse for seducing her roommate’s boyfriend to the friends she lost, and an opportunity to fit in in with her new circle of friends, who were extreme victims’ rights advocates.) In any case, there’s no reason to believe that false rape reports occur at a lower percentage on college campuses than elsewhere.

Since July 2011, according to the Spangler Reports, there have been at least 92 sexual assault claims filed by Yale students (undergraduate and graduate), along with 18 cases of “intimate partner violence,” which the reports started distinguishing from sexual assault claims beginning in July 2013. With around 100 claims, therefore, it stands to reason that at least a few Yale students would have been found to have filed false reports. Instead, since July 2011, there have been zero students disciplined for filing a false report. There have been zero students who even faced a hearing for filing a false report.

The current Spangler Report does, however, contain a first: the disposition of false report allegation. The outcome? “The UWC found no factual basis for the respondent’s complaint and therefore did not accept jurisdiction.” In other words, the student didn’t even have the opportunity to present his evidence in a hearing. This is one of only five sexual assault-related claims since 2011 in which the Yale UWC has refused to “accept jurisdiction.” The other four involved two cases where the accused student had already withdrawn from the university; one where the accuser hadn’t provided sufficient information in her complaint; and one where an accuser appears to have refiled a claim that the UWC already had adjudicated and rejected. The current rejection, therefore, is the only one for which the UWC declined to proceed because it wouldn’t consider the specific allegations made by the student.

This result isn’t in any way surprising. Enormously powerful incentives exist for universities not to adjudicate false report cases, ranging from the benign (a fear that doing so might discourage actual victims from reporting) to the less defensible (an administration’s fear of almost-certain protests from certain quarters of the faculty, campus activists, or their allies in the media). But Yale’s handling of this issue provides a reminder that in the university environment, there’s virtually no possibility that a student who files a false rape report will be punished. That the system, on the other end, provides insufficient procedural protections for a falsely accused student to defend himself dramatically increases the chances of campus tribunals rendering unjust results on this issue.

Finally, the current Spangler Report contains an item that illustrates the potential danger to all in an environment like the current one on college campuses. An administrator informed the Title IX coordinator of a “rumor” that a graduate student inappropriately “engaged in personal relationships with undergraduate students.” Again: a rumor. The Title IX officer investigated and concluded that she “could not substantiate the allegations.” But she nonetheless “referred the matter to the respondent’s supervisor for additional oversight.”

Maybe the student behaved inappropriately. But it’s possible that this was an allegation leveled with ill intent. Either way, Yale’s Title IX office took an action that at least risked damaging the relationship between a graduate student and his supervisor—a relationship that’s critical to the student’s future career prospects—based on what the Title IX coordinator herself conceded was an unsubstantiated rumor.

Why ‘Yes Means Yes’ Rules Can’t Work

Despite criticism from all overthe politicalspectrum, so-called “yes means yes” sex rules are on the march. After California, New York Gov. Andrew Cuomo signed a law on July 7 requiring all of the state’s universities to adopt an affirmative consent policy for sexual assault cases. Similar rules are set to go into effect at the University of Minnesota, though their implementation has been delayed by civil liberties concerns; New Hampshire and New Jersey are considering legislation that would tie funding for colleges to the use of affirmative consent standards. Meanwhile, reports from the field—and even the words of the people who champion these policies—leave little reason to expect anything but disaster.

Maybe an App Will Help

Take, for instance, a recent piece by Amelia McDonnell-Parry on the feminist site The Frisky, vehemently objecting to several new smartphone apps targeted to college students that purport to facilitate affirmative consent—for instance, by allowing partners to record a 20-second video stating their mutual consent to sex. McDonnell-Parry agrees with Apple, which has barred one such app as “icky.”  (Of course, many feel that way about “affirmative consent” rules in general.) She is particularly irked that the app is intended to provide proof of consent—which, evidently, amounts to supporting the heresy that women may lie about rape and that men can legitimately worry about false charges. McDonnell-Parry also argues that a recorded “Yes” should not be treated as final: “After all, consent, once given, is NOT locked in stone, and pushing the idea that the ‘consent discussion’ is over once someone has said ‘Yes,’ is downright dangerous.”

Interestingly, McDonnell-Parry believes that, contrary to what campus policies and consent workshops typically teach these days, agreement to have sex can be expressed through “indisputably consenting body language” as well as words. It does not seem to occur to her that, even aside from deliberate lies, someone who regrets a sexual encounter could genuinely come to believe that she (or he) never gave consent. We are thus back to a central problem with affirmative consent policies, even aside from the intrusive regulation of how people conduct themselves in sexual situations: proving that active consent was obtained is virtually impossible. Some supporters of these policies openly admit that they have no idea what kind of proof a wrongly accused student could offer to clear himself (“Your guess is a good as mine,” California Assemblywoman Bonnie Lowenthal told the San Gabriel Valley Tribune last year). Others, such as McDonnell-Parry, openly say that there is no need for proof since false accusations are not an issue.

The Times Weighs in

Meanwhile, the New York Times, which has consistently supported the campus rape crusade, has a new report intended to show an affirmative consent success story focusing on the University at Albany, a part of SUNY. Author Sandy Keenan writes, evidently with a straight face, “The consent definition within [the new law], officials say, is not intended to micromanage students’ sex lives but to reorient them on how to approach sex and to put them on notice to take the issue seriously.”

Many students, Keenan acknowledges, are resistant to being “reoriented.” Carol Stenger, director of the university’s Advocacy Center for Sexual Violence, laments that “men and women think the situation is a wash when both are inebriated” and that it “drives [her] crazy.” (Stenger never explains why they are wrong.)  The male student at the center of Keenan’s article, junior Tyler Frahme, initially complains that affirmative consent policies are not “gender-neutral” and “cast men in a predatory light.” However, his friend Jill Santiago, who has organized sexual assault prevention training, tells him that “if guys realize they have to ask and get permission … this could wind up protecting everyone.” (That sounds suspiciously like the ultimate heresy: suggesting that men need to be protected from false accusations.)

A Little More Comfortable

At the end of the article, Keenan reports that when she called Frahme about a month later, he told her that, to his own surprise, the policy has changed his behavior and he is now “practicing consent almost religiously.” Specifically, he checks for consent—with questions like “You O.K. with this?” and “Do you still want to go ahead?”—“once or twice during sexual encounters with women he knows well, and four or five times during more casual or first-time hookups.” And how’s that working? Frahme tells Keenan that “it’s getting to be a little more comfortable,” which is hardly a ringing endorsement; however, he also reports that one first-time partner thought his questions were a devious way of manipulating her into bed. Assuming that Frahme wasn’t pulling Keenan’s leg—just how many women is he talking about over a one-month period?—this raises the disturbing possibility that questions intended to elicit consent could be construed as a form of sexual pressure.

Keenan’s article, which also includes interviews with several young women, does contain one genuinely disturbing account of campus sexual violence. One of her female interviewees, a senior, told Keenan that her only sexual encounter during her four years at the school turned disastrous when her male partner became too physically aggressive and domineering, ignored her request to stop and her attempt to push him away, and covered her mouth with his hand as he forced himself on her. Dealing with this kind of sexual assault, in which the evidence often comes down to her word against his, presents a difficult challenge. But “consent policies” will do nothing to help: a man who is willing to physically coerce a woman into a sexual act, ignoring her verbal and physical resistance, won’t hesitate to claim that she verbally consented.

The Story of Tim

The type of male student most likely to be ensnared in “affirmative consent” policies, and the type of incident likely to be reclassified as non-consensual, is illustrated by a revealing story on Cracked.com, a website oriented toward young adults that combines a hip style with leftist cultural politics, titled “5 Things I Learned Committing A Campus Sexual Assault.”

The article tells the tale of “Tim,” a student who approached the website to tell the story of how he committed a sexual assault (the details of which were apparently confirmed by his university). During the summer, between semesters, Tim and his college friend “Vicky” went out for a night of bar-hopping during which they had four or five drinks each, held hands and engaged in sexual banter, stopped briefly at a sex shop, and then went to Vicky’s place where they sat down on the couch to watch DVDs with Vicky’s head resting on Tim’s chest. At some point Tim began rubbing Vicky’s back, then moved his hand down underneath the waistband of her jeans, encountering no objection—indeed, he thought she felt her shift toward him—and proceeded to stroke her breasts over and then under her shirt. According to the article, “This all went on for an hour or so” before Tim hugged Vicky good-bye and went back to his own room.

The next day, Tim was shocked when a friend of Vicky’s confronted him and told him that “people had gone to jail for doing what he’d just done.” While Vicky never went to the police (and it’s extremely unlikely that the police would have taken such a case), she did file a complaint with the college. Tim was found responsible, and while his only punishment was a reprimand, his life on campus has been turned upside down by the requirement to stay 50 feet away from Vicky.

According to Vicky, the reason she didn’t rebuff Tim is that she had dozed off, woken up to find Tim touching her, and “froze in fear.” This claim seems extremely far-fetched, given the intimate situation and the lack of any indication that Tim might be violent. (Since Tim does not sound like a sociopath, it also seems extremely unlikely that he would not notice Vicky was frozen stiff.)  If grown women are so fragile and so terrified of men, that’s a rather depressing statement about prospects for gender equality.

It’s hard to tell what actually happened in this case, especially since Tim, who is racked by guilt, is extremely anxious to avoid anything that may smack of “victim-blaming.” It may be that Vicky didn’t quite know how to tell him to stop and the incident was a genuine misunderstanding. It may be that she was more willing than she admitted to herself; Tim’s narrative repeatedly stresses that she was a “good girl” who would never agree to sex. (Both of them are religious, and the convergence of “progressive” sexual politics with old-fashioned sexual guilt is one of the curious aspects of the piece.)

Cracked.com author Ryan Menezes stresses that even if Tim innocently misread the signals, it doesn’t mean his “victim” was any less traumatized. But people have plenty of traumatic experiences that aren’t criminal. Stipulating for the moment that Tim should have been more attentive to Vicky’s signals, there were many possibilities for a non-punitive resolution—including, perhaps, university-provided counseling and mediation.

Would affirmative consent have helped avoid such a situation? Doubtful. It is easy to imagine a similar scenario in which Tim asks Vicky if she’s okay with this and Vicky nods or even says yes—and then makes a complaint within the campus system, claiming, in all sincerity, that she felt too intimidated to say no.

“Yes means yes” will not stop sexual predators. It will turn more sensitive young men like Tim into victims of a college “judicial” system rigged so that the accused virtually cannot win.