Cathy Young is a regular contributor to Reason magazine and Real Clear Politics.
In the spring, an Obama administration initiative directing colleges and universities to toughen their policies on student sexual misconduct raised concerns among civil libertarians about unreasonably intrusive regulations. Now, reports from one of the nation's top universities confirm that these concerns were justified.
Yale, which promised a crackdown on campus sexual offenses under pressure from a federal civil rights investigation in 2011, is now policing "non-consensual sex" defined in a way that trivializes sexual violence, infantilizes women and men, and intrudes into private lives.
A few weeks ago, Yale's semiannual report on the handling of sexual misconduct revealed that in the first six months of 2013, six students were found to have engaged in "nonconsensual sex." But only one was punished with so much as a one-year suspension, while the rest got written reprimands and were told to get counseling.
Critics assumed "nonconsensual sex" was a newspeak-style euphemism for rape and raised accusations of outrageous leniency toward rapists. So earlier this month, Yale administrators countered by releasing a more detailed explanation of the offense, complete with eight examples.
All, according to the Yale memo, would result in expulsion. Three of the scenarios -- hypothetical but supposedly based on actual cases -- involve clear-cut assault: the use of physical force or restraint, or sex with a drunk and disoriented person. But the rest range from ambiguous to absurd.
For instance, "Alexis" wants to have sex, while "Riley" is ambivalent. Riley engages in intimate contact, however, and finally agrees to have sex. While this is judged consensual, the memo still says that Alexis would be advised about "the inappropriateness of sexual pressure" and referred for "sensitivity training." Would Riley be advised about the inappropriateness of making a complaint after clearly consenting to sex, or about assertiveness training? Apparently not.
Two other scenarios, both with carefully gender-neutral names, are classified as "non-consensual" even though the "victim" never says no. In one case, "Ansley" says, "I'm not sure" when "Devin" begins to escalate physical intimacy, but does not object to a subsequent advance and goes along with sex -- though not very enthusiastically (which a disciplinary panel is somehow expected to verify). Devon faces suspension or expulsion for lack of mind-reading skills. In the other, "Kai" receives a reprimand because he or she "took no steps to obtain unambiguous agreement" to a sexual act during an otherwise consensual encounter -- despite stopping as soon as "Morgan" expressed a desire to stop.
In neither case is there any mention of force, threat or intimidation. How patronizing to suggest that in such a situation, a "no" is too much to ask.
By these standards, many of us -- male or female, straight or gay -- have been both perpetrators and victims of "nonconsensual sex" more than once. The truth is that many people, both women and men, are put off by spontaneity-destroying checks for agreement. Many people have sex when they feel ambivalent. As long as there is no coercion and everyone is free to say no or to stop, these messy issues are for adults (even young adults) to work out between each other without intervention by the authorities. What happened to keeping the government -- or government-guided university administrators -- out of the bedroom?