mead cohen berger shevtsova garfinkle michta grygiel blankenhorn
discipline and punish
The University Policy That Fails Everyone

Amid growing concern over sexual misconduct on American college campuses, the idea that the accused don’t deserve full legal representation has put some feminists and university administrators on the wrong side of morality and of the law. Fortunately, the reaction against this overreach is gaining ground, according to a new piece in the New York Times on lawyers who are pushing back against the way colleges handle these kinds of disciplinary proceedings:

Last month, 28 members of the Harvard Law School faculty published an op-ed criticizing Harvard’s sexual misconduct policies for “the absence of any adequate opportunity to discover the facts charged and to confront witnesses and present a defense at an adversary hearing,” for exceeding the parameters of Title IX and for “the failure to ensure adequate representation for the accused.” […]

A similar number recently stepped into the political arena when they signed a letter denouncing the Campus Accountability and Safety Act proposed by Senator Claire McCaskill, Democrat of Missouri; the measure is intended to help universities address sexual misconduct more effectively. “By presuming that all accusers are in fact ‘victims,’ ” the letter said, “the proposed legislation does a grave disservice to those accused of serious sexual offenses.”

Rape is a horrible crime. To say that young people accused of rape are entitled to fair legal protections isn’t to endorse, defend, or enable rape. Nor is it to ignore the struggles that victims have in being believed or getting justice or protection. Sadly, some people have lost sight of these obvious facts.

Nevertheless, sending a few more lawyers to college campuses will not change the cultural conditions that have led to widespread sexual assault. The dysfunction of campus sexual assault policy—for the victims and the accused alike—traces to the mess that college life has become for many students. Where binge drinking, drug use, and the hook-up culture have taken hold, vulnerable young people are exposed to painful and damaging interactions. Meanwhile, administrators are often reluctant to address these toxic trends, and ill-equipped to handle the fallout.

Young women (and not only young women) are not helped by a culture that celebrates casual sex in an atmosphere of unrestrained use of alcohol and other drugs. Feminists and others are right that the situation on some campuses is unacceptable, but the “affirmative consent” paradigm seems like a dubious solution in this context.

There is no easy solution to this tangle of problems, to an environment where so many are harmed not only by other students but by indifferent or incompetent administration. College life in some place is failing everyone, even as rape victims face a unique kind of trauma. Universities have largely given up their old role of functioning in loco parentis, despite the new focus on these tribunals. In then end, there is no substitute for parents and other adult authority figures going out of their way to provide guidance and good role models for young people of all genders and persuasions.

Features Icon
show comments
  • Andrew Allison

    On the contrary, there is an easy solution: the opportunity to discover the facts charged and to confront witnesses and present a defense at an adversary hearing. As TAI points out, rape is a heinous crime, and should be punished to the full extent of the law. However, trampling on the civil rights of the accused is a very slippery slope.

  • FriendlyGoat

    Consider the last sentence of the article. Now let’s ask ourselves whether “parents” going out of their way to provide guidance and good role models for young people of all genders and persuasions is 1) Happening? and 2) Working? (If so, why would we find ourselves referring to “the mess that college life has become for many students”?) We are now at the point where, due to electronic amplification, the “other adult authority figures” (from article’s last sentence) are actually more likely to have an impact.

    So, if you get some spokespeople (no, not Bill Cosby anymore) who are willing to help, WHAT are they going to say that might be heard?
    Don’t get drunk? Don’t have sex?

    “Yes means Yes” is a marvelous communication piece for saying A LOT in three words. It does not have the built-in disadvantage of sounding dorky or churchy. It asks something of both young men and young women. You will actually be able to get influential people to repeat it in public. We’d be wise not to let it be killed by either the frat-house enablers or the political haters of feminists.

    As for legal risks to young men, anyone who does not get drunk with women and who even thinks about “yes means yes” will have no risk at all.

    • trashhauler

      Yes, let’s establish an unattainable standard and throw away due process because it’s a catchy phrase that doesn’t sound “dorky.” What does it ask of women? They don’t even have to say anything if they change their minds. The man is suddenly guilty anytime she decides he is. If the colleges were serious about the problem, they would outlaw drinking for all underage students – and punish them all to make it stick.

      • FriendlyGoat

        Well, I’m with you on the alcohol in colleges part. You’d think conservatives would support this, but they don’t much.

        There is nothing unattainable about men being required to expect clearly affirmative responses to each level of their advances, AND women learning that they have a responsibility to either provide them or CLEARLY not provide them.
        I have a billy goat out back who would not understand or agree with this, of course, but he suffers from being a GOAT, incapable of comprehending rules, standards, expectations, norms, mores, judgment and most importantly, empathy.
        Men and boys can be taught better. “Yes means yes” is a very good start for this reckless point in time.

        The quasi-legal part of this in college proceedings is going to take care of itself—–right after some famous false accusation cases result in some accusers (and maybe some colleges) being sued for bucketloads. Meanwhile, a 21st-century standard of behavior imposed in three words on men/boys in secular society is waaayyyy overdue. You’d think the conservatives, with their large constituency of church people, would support this too. I’m not holding my breath that they will, however. (Some of them would rather die than appear to align with a feminist—-even when doing so would more nearly resemble their own pulpit positions.)

  • George_in_LaQuinta

    Bill Clinton’s legacy continues on.

  • qet

    Sex is old news. Sex is dangerous, and risky, and fraught. The containment of the human sexual drive and acts has been the priority of every human society going back before recorded history began. Rape has been severely (if not always) punished by every society, if only by inter-clan violence. It is not necessary for every person (man) who questions or objects to the current goings-on to reassure everyone else (the fanatic feminists) that “rape is serious and horrible and should be punished.” Because that is not the issue. The issue is that the fanatics are trying (and succeeding) to appropriate the authority and gravitas of the word “rape”–a very powerful word–to more and more male behaviors. In short, the fanatics are requiring that women be completely relieved from all risk of sexual behavior, that this risk be the man’s alone. The idea that only the woman retains all rights and authority in a sexual encounter is perverse. We don’t need any new laws or training to object to and punish the age-old practice of drugging a woman to incapacitate her for a sexual purpose. We don’t need any new laws or ethics to object to and punish the man who satisfies himself on a blacked-out woman. But the idea that these ethics and laws should be extended, that they even can be extended, to label and punish as a “rapist” a man who continues the sex act after a woman who was at all previous times willing (even if moderately intoxicated, because intoxication preliminary to sex is also an age-old behavior), to the extent of voluntarily accompanying the man to a bedroom or other venue and voluntarily undressing and voluntarily participating, beyond the moment where the woman suddenly changes her mind—this is highly problematic, to say the least. Reducing this most fraught and psychologically complex human event and emotion to a stupid slogan like “No means No” or “yes means yes” is an absurd and political-propagandistic maneuver that any thinking person ought to immediately reject. The idea that a rape cannot be deemed to have occurred unless a woman physically resists a man forcing himself upon her to the point of death or maims her attacker is wrong and even absurd. The idea that a previously willing woman who suddenly changes her will mid-act is under no obligation to convey that change of will to her partner by means rather more insistent that a barely audible “no” or “stop” is just as wrong and absurd.

    The real travesty here is not in the surface-level due process issues currently being raised, although I agree these are yet another outrage. The real travesty is that a great number of people who imagine themselves intelligent are uncritically accepting a complete redefinition of human beings’ oldest and most primordial behavior to relive one of the participants of all responsibility for her actions, of her share of the risk that accompanies every sexual encounter.

    • FriendlyGoat

      Why does it not occur to people that a saturation of the “yes means yes” message in secular society would rather suddenly impose relationship responsibility on women? They aren’t deaf, you know. The standard would be asking them to say something with clarity.

      • qet

        Because that kind of contractual formalism is not how sex works. Sure, you can imagine a universe in which everyone behaved like this, and you can be impressed with how a universe like that would not have the problems and outrages that our actual universe does. There is nothing theoretically impossible about an affirmative consent world except that such a theory does not in any way describe the world we actually live in.

        • FriendlyGoat

          Some conservatives are (oddly, in your view?) stuck on the “contractual formalism” of marriage being precisely how sex is supposed to work. Usually that involves a “Will you?” and an “I will.” What could possibly be strange about extending that concept downward to the lesser commitments of sex without marriage?

          The “world we actually live is” is socially deteriorating for the worse. You’re arguing for settling for no effort to improve it.

  • BillClintonsShorts17

    Affirmative Chastity is in order here.

    • FriendlyGoat

      There might be a lot of ways to interpret your comment. I think I’ll just dive in with sincere naivety and absolutely agree with you that any young men practicing “affirmative chastity” for themselves will 1) Be part of the solution for women, and 2) Have no problem whatsoever with any policies on this subject at any college.

      • Tom

        Welcome to social conservatism, Mr. Goat. We’ve been saying this for years. Your coat, sir?

        • FriendlyGoat

          “Yes means yes” can be expected to ‘help” more young men stay on the side you like, due to whatever incremental awkwardness can be added to the casual sex scenarios. I like the whole idea, but I’ve come to understand that “yes means yes” is not playing well in conservative circles (because it is associated with feminists, I suppose.)

      • BillClintonsShorts17

        Exactly. Works for both sexes.

  • Alexander Rawls

    “… will not change the cultural conditions that have led to widespread sexual assault.”

    The claim that sexual assault is “widespread” on college campuses is well established to be a LIE, based on phony statistics that conflate sexual assault with things that are absolutely NOT assault like agreeing to have sex when you don’t really want to and agreeing to have sex after consuming some alcohol or experiencing unwanted sexual attention. College campuses are in general very safe places for all. Even with hordes of girls drunk out of their skulls, actual rape or any kind of real sexual assault is very rare.

    The only reason it warrants any special attention at all is because of the nature of the crime, that we want girls to be alert to protect themselves and we want the boys to watch out for the girls. It does NOT warrant special attention on the grounds that it is a large or growing problem. By the numbers it is a small and shrinking problem.

  • trashhauler

    At least this will eliminate any practice of BDSM on campus or between students anywhere. “May I tie you up?” “Okay.” May I strike you with my hand on the behind?” “Okay.” “May I use these clamps?” “Uh, Okay.” May I hit you with this whip? “What? Er…..” “Well, never mind. May I pull your hair? “Uh….” It’ll sorta take the suspense out of things.

    • FriendlyGoat

      You’re actually speaking progress.

  • Fat_Man

    If they eliminate binge drinking and random hookups from college campuses, no one will want to go to college anymore. Is that a good idea:-)

  • stan

    There is no widespread sexual assault on college campuses. Stop spreading this ridiculous lie. Just because Obama says something doesn’t make it true. If you haven’t figured that out by now, there’s no hope.

  • Tom

    In the last half of the 20th century, the formal rules of sexual behavior were gone after with a vengeance. Having observed the consequences, the first half of the 21st was spent by the descendants of the destroyers in trying to find substitutes.

  • teapartydoc

    The answer is to not have any on-campus housing.

© The American Interest LLC 2005-2016 About Us Masthead Submissions Advertise Customer Service