Senators Kirsten Gillibrand and Claire McCaskill—two of the upper chamber’s most vocal figures on the issue of campus sexual assault—are waging an all-out war against the “Safe Campus Act”, a Republican-sponsored piece of legislation that would, among other things, require alleged campus sexual assaults to be reported to law enforcement before they could be adjudicated in campus tribunals. The National Journal‘s Sarah Mimms gives a good overview of the arguments on both sides of the bill: Its supporters, including Greek associations and civil liberties advocates, say that cops and judges, not campus administrators, should be responsible for addressing serious crimes, while its opponents, including a coalition of rape crisis activist groups, say the prospect of dealing with law enforcement intimidates victims and prevents them from coming forward.The anti-Safe Campus Act position is puzzling on a number of levels. Campus activists and their supporters have, over the last two years, been successfully arguing that campuses are failing to adequately adjudicate sexual assault cases. They have also claimed that our society is infected with a “rape culture” in which allegations are not taken seriously, and that campus rapists are usually “serial predators,” who will offend again and again. Given these premises, wouldn’t it make sense to ensure that all campus sexual assault allegations are considered by police and prosecutors—the only authorities who have the power to truly incapacitate (rather than simply expel) an offender—in addition to campus administrators? Wouldn’t this be the only way to properly reflect the severity of the crime in question?You won’t hear them admit it, but one of the primary reasons campus rape activists are loath to create a larger role for law enforcement in campus rape cases is that they correctly perceive that the legal system would summarily dismiss many if not most of the cases that lead to disciplinary sanctions in campus courts. (This is also the reason, by the way, that fraternities are so enthusiastic about the Safe Campus Act). Not only do campuses use a far lower standard of proof than the criminal justice system (“more-likely-than-not” instead of “beyond a reasonable doubt”), but—even more critically—they are increasingly interested in applying a new and much broader definition of rape than the one provided for in criminal codes. The clearest representation of this is the increasingly widespread adoption of “affirmative consent“—the requirement that each party must explicitly agree to every sexual act within every sexual encounter—but it also extends more broadly to colleges’ practice of treating boorish male behavior, even when it is clearly not criminal, as a punishable offense.
Harvard Law Professor Jeannie Suk discussed this phenomenon in a brilliant New Yorker essay on a recent rape case at an elite boarding school:
We are in the midst of a significant cultural shift, in which we are redescribing sex that we vehemently dislike as rape, and sexual attitudes that we strongly disapprove of as examples of rape culture. For centuries, the legal definition of rape was intercourse accomplished by force and without consent. Many states have done away with the force criterion, and no longer require proof that the victim physically resisted the assailant or failed to do so because of reasonable fear of injury. With force absent from rape definitions, there has been increasing pressure on how to define consent. In the past several years, on many college campuses, consent has become affirmative consent, according to which not obtaining agreement before each sexual act is sexual misconduct. California and New York require affirmative-consent policies at schools receiving state funding. Some college campuses have gone even further and defined consent as not only positive but “enthusiastic” agreement to have sex. Anything short of that becomes sexual assault … Far-fetched at the time, Catharine MacKinnon’s 1981 statement, “Politically, I call it rape whenever a woman has sex and feels violated,” is effectively becoming closer to law, even if it is not on the books.
Campus activists and their supporters oppose the Safe Campus Act because they are sympathetic to MacKinnon’s definition of rape, but they know that (for now, at least) our criminal justice system is unwilling to apply it. College campuses are the crucible of an ongoing revolution in rape law, and in order for the revolution to continue, it must be insulated from reactionary prosecutors and judges, with their old-fashioned ideas about force and consent. Meanwhile, the activists must be able to continue to push the idea of a campus rape crisis where one in five women are victims, without revealing to the public that what they describe as “rape” is actually something very different from what most people still understand the term to mean.We are at a strange cultural moment where the left that is trying to impose more regulations on (certain kinds) of sexual activity, and the right is opposing these regulations on the grounds of civil liberties and due process. We think that the right has the better of this particular argument—that affirmative consent standards and amateur campus tribunals are likely to fail, and that sexual assault cases are best handled in courts of law. Still, as conservatives resist efforts to redefine rape along the lines Catharine MacKinnon would like, it’s important they don’t ignore the cultural developments that have given these efforts so much momentum. As we’ve argued before, the “liberated” sex scene that exists on college campuses seems to work out much better for frat boys than for everyone else, and measures like affirmative consent, clumsy and clunky as they are, are in part an understandable reaction to a heavily tilted (and often quite ugly) sexual landscape. So conservatives pushing the Safe Campus Act should aim not to be champions of the frat boys, but to be champions of pragmatism, liberty, and the belief that people can change their culture without heavy-handed intervention from the authorities.Watch the upcoming battle over the Safe Campus Act closely. It’s about more than reporting technicalities; it’s about an ongoing culture war that will resonate for a generation.