Cathy Young is a regular contributor to Reason magazine and Real Clear Politics.
As college students arrive on campuses, legislative efforts to combat sexual violence in the nation's schools are escalating.
The California legislature passed a groundbreaking bill that requires the state's colleges to use an "affirmative consent" standard in evaluating sexual assault complaints so that consent cannot be inferred from the absence of a "no." Meanwhile, bipartisan legislation was introduced in the U.S. Senate, with Sen. Kirsten Gillibrand (D-N.Y.) as one of its authors, to address campus sexual assault, which the sponsors say affects 1 in 5 college women. These figures have been criticized by researchers who say the real figure is closer to 1 in 50 -- which still makes campus rape a very real problem. But the proposed solutions mostly target the wrong issue.
The California bill would protect intoxicated victims who lack the capacity to say no. (In fact, forced sex in such situations is already a crime, as well as a violation of student codes of conduct.) But the legislation offers only a vague definition of affirmative consent, which could mean anything from nonverbal cues to a verbal "yes" to a signature on the dotted line. Moreover, even its supporters, both in the legislature and in the media, sometimes concede that they don't have a clear idea of what constitutes a violation or how a wrongly accused person could prove innocence.
The U.S. Senate legislation sets some seemingly uncontroversial goals such as mandating annual student surveys of sexual and dating violence and regularly collecting data from colleges on their handling of sexual assault reports. But Ashe Schow, a commentary writer for the Washington Examiner who has been following the bill, points out the requirements -- tied to federal funding -- would likely create pressure on colleges to declare more accused students guilty of misconduct, even on weak evidence. While the bill creates new services for accusers, whom it presumptively designates as "survivors," it makes no mention of support or protection for the accused.
The Senate legislation is based on the premise that college investigations of sexual assault complaints are stacked against the women -- and occasional men -- who report being victimized. But these claims are often based on one-sided and hyperbolic media accounts. While some victims are no doubt ill-served by the disciplinary process, a growing number of commentators -- including politically progressive ones such as John F. Banzhaf, a public interest attorney and George Washington University law professor -- are saying accused students are much more likely to get a raw deal these days. More and more young men are suing over wrongful expulsion. One such plaintiff, a former student at Occidental College in Los Angeles, was expelled over a mutual drunken encounter in which the young woman was an active participant as proven by her own text messages.
One potentially positive aspect of the Senate bill is that it encourages coordination between campus authorities and law enforcement. Yet the truth is that many of the incidents campus activists describe as rape fall far short of the legal criteria for such a crime.
Advocates combating sexual assault need to stop lumping it together with unwanted sexual experiences due to miscommunication or impaired judgment. Such experiences can cause real trauma. But reclassifying them as assaults removes all accountability from one party and unilaterally assigns the blame to the other -- in heterosexual situations, usually the male, even though plenty of college men also experience unwanted sex.
If colleges want to teach students to avoid unhealthy relationships, such education should stress mutual responsibility. As for real rape, it is a vile crime that should be left to the justice system.