Tag: Sexual assault

May I Put My Head Up My Own Ass?

I’ve blogged twice before on the creeping criminalization of all things sexual. As I have noted many times, the goal here is not to prevent rape or sexual assault, per se. It is to enshrine radical feminist notions of consent into law so that women are considered victims, sex is considered non-consensual by default and any man can be guilty of sexual assault.

To wit:

PERHAPS the most consequential deliberations about affirmative consent are going on right now at the American Law Institute. The more than 4,000 law professors, judges and lawyers who belong to this prestigious legal association — membership is by invitation only — try to untangle the legal knots of our time. They do this in part by drafting and discussing model statutes. Once the group approves these exercises, they hold so much sway that Congress and states sometimes vote them into law, in whole or in part. For the past three years, the law institute has been thinking about how to update the penal code for sexual assault, which was last revised in 1962. When its suggestions circulated in the weeks before the institute’s annual meeting in May, some highly instructive hell broke loose.

In a memo that has now been signed by about 70 institute members and advisers, including Judge Gertner, readers have been asked to consider the following scenario: “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).”

Far-fetched? Not as the draft is written. The hypothetical crime cobbles together two of the draft’s key concepts. The first is affirmative consent. The second is an enlarged definition of criminal sexual contact that would include the touching of any body part, clothed or unclothed, with sexual gratification in mind. As the authors of the model law explain: “Any kind of contact may qualify. There are no limits on either the body part touched or the manner in which it is touched.” So if Person B neither invites nor rebukes a sexual advance, then anything that happens afterward is illegal. “With passivity expressly disallowed as consent,” the memo says, “the initiator quickly runs up a string of offenses with increasingly more severe penalties to be listed touch by touch and kiss by kiss in the criminal complaint.”

That last bit will sound ominous to those of you familiar with our legal system. In some cases, prosecutors will pile up dozens if not hundreds of charges in the hope of intimidating out a plea bargain. Do we really think someone should end up on a sex offender registry for a stolen kiss? A bunch of lawyers think so.

The example points to a trend evident both on campuses and in courts: the criminalization of what we think of as ordinary sex and of sex previously considered unsavory but not illegal. Some new crimes outlined in the proposed code, for example, assume consent to be meaningless under conditions of unequal power. Consensual sex between professionals (therapists, lawyers and the like) and their patients and clients, for instance, would be a fourth-degree felony, punishable by significant time in prison.

Having sex under those circumstances can already lose you a job, a professional license, a reputation and a career. Do we really need to add prison time and registration to an act of slimy but consensual sex? A bunch of lawyers think so.

You should read the whole thing because it gets worse and worse. Stephen Schulhofer, one of the authors of this code, defends the proposal, saying the law would take a “light touch” to policing sex. I wonder if he could identify any time when when the law has ever taken a light touch to anything.

Yes most people will ignore this nonsense. But it would create a powerful tool for law enforcement to punish people they don’t like. Can’t convict a man of rape even though you “know” he’s guilty? Well here’s fifty charges of holding her hand without consent. And suddenly that “light touch” adds up to a twenty-year punch in the mouth. And I’ll give you one guess as to the skin color of the men who would be most commonly victimized.

Schulhofer compares such a law to speed limits:

To critics who object that millions of people are having sex without getting unqualified assent and aren’t likely to change their ways, he’d reply that millions of people drive 65 miles per hour despite a 55-mile-per-hour speed limit, but the law still saves lives. As long as “people know what the rules of the road are,” he says, “the overwhelming majority will comply with them.

First, the majority of people don’t obey the speed limit. Second, the claim that speeds limits save lives is dubious. Third, there have been many problems with people ending up in prison because fines and fees leave them thousands of dollars in debt from minor traffic violations. Fourth … for the love of … speeding is a fine, not a prison sentence. Speeders aren’t put on offender registries. Speeders don’t lose their jobs because they sped. Speeders aren’t barred from being near children. The comparison is totally ridiculous.

The fundamental problem here is that there is a gray area where sex is concerned. Everyone would agree that if a man forces a woman to have sex with him, that’s rape. Everyone would agree that if two people have sex with complete enthusiasm that’s not. But what if one of them drunk? How drunk? Is one party manipulative? Has pressure been brought? What kind of pressure? Does repeatedly asking your spouse or girlfriend for sex count as pressure? What if you tell your boyfriend you’re going to cheat on him if he doesn’t have sex with you?

Over time, we have moved the black area to cover more and more behavior. Having sex with someone who is passed out drunk is rape (unless he’s a man, in which case you’re the victim). That’s as it should be. Coercing or defrauding someone into sex can be rape. That’s as it should be.

But there is a growing part of our culture that wants no gray areas. Everything has to be either has to be enthusiastically consensual or it is assault.

But human beings don’t work that way. We need gray areas, including gray areas in sex. We have and should turn some of that gray into black — there was a long time where a rape victim was blamed if she was drunk. But the idea of turning all of the gray into black is the kind of absolutist idea that only lawheads and fanatics believe in.

This is often tied to reasonable-sounding questions: “Well, why should a woman have to endure a man kissing her if she doesn’t want to be kissed?” She doesn’t. But the law is a crude instrument with which to deal with these things. Any time we have tried — any time we have tried — to inject the law into complex human interactions, it has been a disaster. It has ended up destroying lives, throwing people in prison, and creating a climate of fear and distrust.

One of the NYT’s commenters:

This is a power play by people who know nothing about power other than their desire to have the power to force their vision of sexual exchanges on others through totalitarian state power, totalitarian because it superciliously uses the state to inject into ALL the most intimate adult relationships their own weird ideology, completely unrooted in biology, psychology, or sanity. The heart has its reasons reason does not know so.

Mind your own damn business. Take responsibility.

It is pathetic that this perverted nonsense is taken seriously in the name of rape. It is a perfect storm example of why american contempt for the academic and the intellectual and the professor is justified and the Emperor’s New Clothes remains relevant. The ALI isn’t what it was. It is like the founder’s grandson running the business into the ground.

We should have a debate over how we define rape and sexual assault. That conversation has resulted in enormous progress on the question. But we should not cede the floor to the absolutists and lawheads. That way lies disaster.

One final note: several commentators have joked — or said seriously — that young men should hire sex workers rather than deal with this nonsense. While I favor decriminalization of sex work, that joke isn’t funny. The same people who want to make holding hands into sexual assault want to make patronizing a prostitute into rape. They believe that all sex workers are victims and all johns are predators. And our laws — under the guise of fighting sex trafficking — are coming into line with what they want.

The people who want to keep sex work illegal are the same people who want to prosecute people for holding hands. There’s a lesson in that somewhere …

(H/T to the always awesome Lenore Skenazy and Amy Alkon.)

But Did You Really Mean Yes?

A few weeks ago, I blogged on the affirmative consent law passed by California that requires any sexual contact on college campuses to have explicit and ongoing consent to not be qualified as assault. In criticizing it, I noted:

What this really is about is getting a foot in the door for something radical feminists have wanted for a long time: a standard of “enthusiastic consent” to determine the line between sex and rape. According to these theorists, the only time sex should happen is when the woman is eager for it. Anything else is a varying degree of rape.

Do you have any idea how tired I get of being right all the time?

Activists quoted in the Huffington Post now want to extend this “affirmative consent” ideology, and its pinched, misleading definition of “consent,” beyond college into K-12 schools, and beyond sexual activity to non-sexual touching and unwanted remarks, to teach people the sinister evil of things like “unsolicited hugs.” (My wife and daughter hug me without asking for permission, and sometimes it’s a surprise — a pleasant surprise, even if I never “agreed” to it.). Once busybodies start meddling in your personal life, it’s hard for them to stop.

The meddling won’t stop at the schoolhouse gate, and will eventually reach into your private life, too. As lawyer Scott Greenfield notes, progressive law professors have submitted a controversial proposal to the American Law Institute that the Model Penal Code be radically changed to require affirmative “consent” throughout society, for both “sexual intercourse” and a broader range of “sexual contact.” On page 69 of their draft, they explicitly admit that this affirmative “consent” requirement would classify as sexual assault even many “passionately wanted” instances of sex (presumably because of the technicality that such mutually-wanted sexual intercourse is welcomed after — not affirmatively consented to before — the sex is initiated.) Perversely, they justify this massive invasion of people’s sex lives as supposedly protecting people’s sexual “autonomy” from potentially unwanted sex, even though their proposal goes well beyond banning unwanted sex, to banning sex that was in fact “passionately wanted” although not agreed to in advance. See Model Penal Code: Sexual Assault and Related Offenses, Tentative Draft No. 1 at pg. 69 (April 30, 2014).

This is why, Ezra Klein, you don’t support what you admit is a terrible law because it serves some social justice function. Because once you infect the legal code with the sort of wooly thinking, it will spread and mutate until the entire law code is a feminist manifesto from Berkeley.

Rolling Stone Gathers Some Moss

A couple of weeks ago, Rolling Stone ran a horrific story about an alleged rape at the University of Virginia. They claimed that “Jackie” was lured to an upstairs room in a frat and brutally gang-raped by seven men. They further claimed that Jackie’s friends persuaded her not to tell anyone and she maintained her silence until she found out about other women who had been gang-raped at the fraternity. She then went to the Administration, who tepidly listened to the claim and told her to do whatever she was comfortable with rather than taking action.

Over the next few weeks, several people raised questions about the story, pointing out that it had some issues. When they found out that the reporter had not spoken to the alleged rapists, they pressed Rolling Stone further. For this, they were branded as idiots, rape apologists and rape truthers. Because, apparently, the Duke Lacrosse thing never happened.

This weekend, the roof caved in:

In the face of new information reported by the Washington Post and other news outlets, there now appear to be discrepancies in Jackie’s account. The fraternity has issued a formal statement denying the assault and asserting that there was no “date function or formal event” on the night in question. Jackie herself is now unsure if the man she says lured her into the room where the rape occurred, identified in the story as “Drew,” was a Phi Psi brother. According to the Washington Post, “Drew” actually belongs to a different fraternity and when contacted by the paper, he denied knowing Jackie. Jackie told Rolling Stone that after she was assaulted, she ran into “Drew” at a UVA pool where they both worked as lifeguards. In its statement, Phi Psi says none of its members worked at the pool in the fall of 2012. A friend of Jackie’s (who we were told would not speak to Rolling Stone) told the Washington Post that he found Jackie that night a mile from the school’s fraternities. She did not appear to be “physically injured at the time” but was shaken. She told him that that she had been forced to have oral sex with a group of men at a fraternity party, but he does not remember her identifying a specific house. Other friends of Jackie’s told the Washington Post that they now have doubts about her narrative, but Jackie told the Washington Post that she firmly stands by the account she gave to Erdely.

The entire debacle is alarming. Rolling Stone never contacted the frat or the accused ringleader, despite having his name. They apparently didn’t talk to Jackie’s friends, who they accused of telling her not to go the hospital for fear of being barred from the frat scene. They did not note that her story had changed. Most disturbing of all: Jackie herself apparently asked Rolling Stone to not use her in their story and they refused, which one rape victim believes was like violating her all over again.

(I’ll take a moment here to note my tenuous connection to the story: I went to UVa for graduate school. That may have informed my initial response to the story. I know how strong Greek culture is at UVa and how big a role alcohol plays in the social life. My girlfriend at the time lived near the frats and would be catcalled if she walked by them unescorted. But the story nagged me. It sounded a little too horrifying.)

The following should go without saying but apparently it doesn’t: even if Jackie’s story were complete bullshit, this does not mean that sexual violence isn’t a problem in the country, on college campuses or at UVa in particular. But to some liberals, this needs to be said because, apparently, if you question the story — any story — you’re denying that rape exists.

Moreover it’s possible that Jackie’s story is partially correct or even mostly true. Three of Jackie’s friends have now gone on record as saying that something bad did happen, apparently a group of men forcing her to perform oral sex. If that or anything close to that is true, it’s still horrifying. And if the Administration provided her with as little guidance as alleged, that’s damning.

So this is not about “rape denial”. Nor is it about a “hoax” perpetrated by a young woman who may have a distorted memory of that night or may have her own psychological issues. This is about the complete and utter failure of journalism and an indictment of the debate we are having over sexual violence.

It’s one thing to write about the problem of campus rape and unsympathetic authorities. It’s not like there’s a dearth of real documented cases of women making substantive allegations only to see them dismissed. But in this case, a specific allegation was made about a specific frat and specific men within. Maybe they did do it. But if you’re going to name names like that, you have to do due diligence. You can’t just take one girl’s claims and run with it because it’s so sensational (especially when she has begged you not to). You have to talk to the other principles, you have to give them a chance to respond, you have to do some basic fact-checking.

And this may not be the first time this exaggeration has happened. People are now poring through Sabrina Erdely’s writings and finding other cases, involving sexual abuse in the priesthood and in the military, where her facts are wrong or extremely unlikely. In all three cases, no one doubts that sexual abuse and cover-up existed in these institutions. But in all three cases, that wasn’t enough for Erdely. She had to go with a more sensational story. Because apparently, an 18-year-old freshman being forced to perform oral sex wasn’t sensational enough.

This is the problem with the attempts to make rape and sexual violence an important issue. The people who trumpet bullshit statistics or demand that believe every accuser by default are actually doing a disservice to rape victims. They are destroying the credibility of all victims, destroying the credibility of all advocates. In politics, you only have so much ammunition to use in advancing your goal. You can’t waste it shooting at shadows. Investigating Jackie’s claims might have done her some harm. But nowhere near the harm that not investigating them has done. Because now her credibility is completely shot even though at least three people can testify that she claimed to have been assaulted on the night in question. And that’s to say nothing of the frat and the accused. If they are innocent, they have been badly harmed by these allegations. And for all of the principles here — Jackie, the boy who supposedly initiated the rape and several of the alleged participants — they’re real names have come leaking out from Rolling Stone.


One cost of minimizing false negatives is to the false positives who get hurt. But another cost is to the credibility of all rape reports. People who responded to the problems with the Rolling Stone story by saying that this didn’t have anything to do with the real problem — the culture of rape on college campuses — were missing something important. Actually, two important things. First, that deciding what to do in the face of these trade-offs between false positives and false negatives is actually a vital matter of public debate in all areas of policy, and this story cast important light on how those trade-offs may have been made outside of the public eye. And second, that by declaring that this story, which just a week before was a grave matter demanding the urgent attention of the nation, somehow became trivial and irrelevant when it started to look as if it might be false, writers and activists were suggesting that they simply didn’t care about false positives. Which undercuts the very public trust they need to advance their cause.

McArdle references Emily Yoffe’s excellent article at Slate, which you should read. It makes the case that a young man at Michigan was railroaded by a single Administrator with an agenda. McArdle also touches upon an important point which is that people wanted to believe the Rolling Stone story. As horrible as it was, it played to many of our biases: that victims always tell the truth, that frat boys are evil, that there is an epidemic of rape in this country.

For me, the ultimate take from this is to only firm up my conviction that rape and sexual assaults should be handled by the police. Jackie should have gone to the police on the night she was allegedly attacked. She should have been told, from the moment she set foot on campus, that sexual violence is a crime and a crime is something you go to the police for. Her friends should have been told to encourage victims to go the police. The Administration, upon hearing her, should not have adopted a “neutral” position but told her to go to the police. Easterbrook:

Going to police would be traumatic for those who allege sexual assault, but talking to police is traumatic for all victims of violent crimes, including for all male victims. Some law enforcement departments now have specialists in personal trauma, trained to soften the nature of the complainant interview. If local police near a college knew they’d be the ones to handle sex-assault claims, departments that do not now have specialists likely soon would.

The core aspect of campus sexual assault is that male students think they will get away with it. If the new campus standard was that police would be involved from the get-go, male students would face real consequences, and it’s possible their behavior would change. That would make women safer and also improve the situation for male students who respect women.

Yes, sometimes police can be dismissive or ask uncomfortable questions about what a woman was wearing or how much she had been drinking. Their conviction record in cases of campus rape is poor. It is difficult to bring out the truth in he-said she-said situations. The solution to that is to change the way police handle allegations of sexual violence, not to hand the process over to poli-sci professors with delusions of grandeur. As Joseph Cohn points out, the conviction rate when you don’t go the police is zero.

If something really did happen to Jackie — and I think it’s likely it did — and she had gone to the police that night, it’s possible that her attackers would be in jail. And that is a far better outcome than some frat boys being kicked off campus. Or some reporter with an agenda making stuff up so she can get some clicks.

Yes Doesn’t Mean Yes

The blogosphere has been lighting up for the last few weeks over California’s passage of a “Yes Means Yes” law, which basically says that only affirmative consent qualifies as consent and that this consent has be obtained at every phase of any sexual encounter.

The new law seeks both to improve how universities handle rape and sexual assault accusations and to clarify the standards, requiring an “affirmative consent” and stating that consent can’t be given if someone is asleep or incapacitated by drugs or alcohol.

“Lack of protest or resistance does not mean consent,” the law states, “nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time.”

California’s Legislature approved the measure last month, with broad support. But while victims’ rights advocates have welcomed the new standard, the law also has its critics, who say its requirements place too much burden on the accused.

You can guess where most people have landed on this subject. Liberals are praising it as a step against a supposed epidemic of sexual violence on campus (sexual violence on campuses is depressingly real, but the much-touted “one woman in five” stat is an overestimate and in conflict with the government’s own numbers). Many conservatives and libertarians are critical because they see it as canting the field against the accused and an intrusion into people’s private behavior.

Probably the worst commentary on this belongs to Ezra Klein. In his first article, he admitted that “Yes Means Yes” is a bad law but said it was necessary to deal with the problem of campus rape. You can check Conor’s response here. Klein then doubled down with some musings about the legal system which was inaccurate, to say the least.

The thing is, I think much of the debate is missing the point. Whether “Yes Means Yes” is a good law or a bad law, it’s addressing the wrong problem. The problem is not that we have an unclear definition of consent; the problem is that these cases are being handled by universities at all.

To call campus judiciary systems a kangaroo court would be an insult to marsupials. You can read here about the details of a woman who says her boyfriend, during consensual sex, beat her, choked her and anally raped her. When she tried to use the campus judicial system, they allowed him to reference a supposedly exculpatory video, but she was never allowed rebut his testimony by showing the video. They made a big deal over her months-long delay in bringing charges, but didn’t allow her to explain why she delayed (she wasn’t going to bring charges until she found out he had assaulted other women). They were not allowed to consider that he’d been previously found responsible for similar sexual misconduct because the cases had been mysteriously re-opened.

This is not surprising to anyone who has been in academia for long. Campus judiciary systems are frequently a joke. They use rules of evidence made up on the fly, they are usually run by students, staff and/or faculty who have maybe watched an episode of Matlock. The problem is not that they don’t have a clear definition of consent; the problem is that they don’t know what the hell they are doing.

The system is little better than a random number generator. Often, women are subjected to a ridiculous process that leads inevitably to exoneration. But, on occasion, it works the other way and men are railroaded and slimed. There’s no logic or reason to it. The cases that result in men being unfairly kicked off campus are frequently far weaker than the ones that have a campus jury acquitting.

Campus justice systems should stick to what they’re good at: exonerating students who have cheated on exams.

Let’s take a step back for a moment. I have read the details of many cases in which innocent people were convicted of crimes they didn’t commit, often spending decades in prison or on death row. The one thing that jumps out at you, over and over, is the tunnel vision that can grip law enforcement and prosecutors. Once they have the idea that X committed the crime, they begin to see everything in that light. Exonerative evidence is explained away or ignored; confirming evidence is believed and touted. And while academics like to think of themselves as floating loftily above confirmation bias and rushes to judgement, they are just as susceptible to it as anyone else. People tend to decide questions before they have all the evidence. That’s human nature.

The difference is that our legal system has safeguards to try to stop the runaway train of presumed guilt: an adversarial lawyer system, the right to confront witnesses, proof beyond a reasonable doubt, etc. It doesn’t work perfectly, but it works well. Most campus systems have none of that. To the extent that they do, they are trying to get rid of it. In fact, the Justice Department has been pressuring campus legal systems to move toward “preponderance of evidence” and other shortcuts.

The result is that there are few safeguards against a campus judiciary board deciding in favor of whatever their initial conclusion was. If they thought the guy was innocent, they’ll find him innocent. If they think he’s guilty, they’ll decide he’s guilty. How does “Yes means Yes” address that?

It doesn’t. What this really is about is getting a foot in the door for something radical feminists have wanted for a long time: a standard of “enthusiastic consent” to determine the line between sex and rape. According to these theorists, the only time sex should happen is when the woman is eager for it. Anything else is a varying degree of rape.

But under this standard — and to some extent under the standard of “yes means yes” — the vast majority of sex would qualify as rape. When discussing this on Twitter, one of my followers tweeting back that she spent years in a relationship with lousy sex. She was not at all enthusiastic about it, but she consented. Another one pointed out that this would classify all sex work — from street walkers to sugar babies — as rape victims. Still another said she has never been one to initiate sex; but she’s up for it when her partner wants it. In fact, a lot of women’s sexuality is responsive. For a lot of women, what turns them on is being wanted. Dan Savage likes to say that men get aroused and start having sex; women start having sex and get aroused. Lesbians sometimes have difficulty with their sex lives because — whether by genetics or socialization — they have difficult initiating sex out of the blue. And millions of couples have engaged in drunk sex, perfunctory sex or “we’re trying to get pregnant and you’re ovulating so whatever” sex.

Some women (and some men) find the idea of asking for permission sexy. Many women don’t. The simple fact is that human sexuality — and especially female human sexuality — is way too complex for such simple rules. If you put a thousand women in a room and asked them what kind of sex they want, you would probably get two thousand answers. That’s fine. That’s human nature. But California has now taken a step toward codifying one of those answers into law.

I understand the basis for these changes. As Megan McArdle points out, the problem of campus sexual violence is confined to a small percentage of men who do this repeatedly and knowingly. Most women can tell the difference between a guy who misreads her signals and a guy who doesn’t give a shit about her signals (although the people who compile the “one in five” stat count both as assault). What “yes means yes” does is give the colleges more leverage in ejecting the real scumbags from campuses. They’ll no longer be able to waffle and warp when a committee can just say, “Did you ask if she wanted to have anal sex?”

The problem is that 1) this is unlikely to work. Rapists and assaulters will continue to lie and claim that consent was given when it wasn’t. It will just boil down to a more precise version of “he said — she said”; 2) authorities love vagueness in the law. They love it. If you give universities this kind of authority and discretion, it will be abused. It will simply reinforce what the college judicial boards want to do in these cases. If they’ve decided a man is guilty before hearing the evidence, this will just persuade them all the further. And if they’ve decided he’s innocent, this won’t dissuade them. Only a system set up like our current legal system — with witness confrontation, representation and a presumption of innocence — can get close to the truth.

That’s, of course, assuming that the colleges even get the implementation of this law right. We’re now seeing that college regulations are showing up as poorly thought out and badly written, even beyond the bad ideas of legislatures and federal agencies. Michigan’s sexual assault policy is so badly written it makes refusing sex or criticizing someone sexually an incident of sexual violence. Ohio State’s policy regards sex with the elderly or disabled to be assault. I mean, it shouldn’t surprise us that the Buckeyes and Wolverines would fumble the ball like this. But come on. These laws read like they were written by people who’ve never had sex.

Here’s the sexual assault policy I would put in place on college campuses:

1) If someone claims to have been raped or sexually assaulted, this will be handled by the police. As bad as the police are, they’re not a college judiciary committee. A lot of people think this isn’t enough. They want accused rapists kicked off campus so that the victim doesn’t have to live in the same dorms or go to class in the same buildings as him. OK:

2) If a student is the target of a criminal investigation or proceeding, he will be suspended from campus until the case is resolved. He will be allowed to take online courses toward his degree until if/when he is convicted. Even if the charges are dropped, the University will prevent the accuser and accused from living in the same dorm or taking the same classes (as much as practicable). For both their sakes.

Harsh? Yes. But it puts these cases back into the realm of reality where charges, claims, counter-claims and evidence is being handled by people who do this for a living not some psychology professor with an axe to grind.

Sexual violence in our society is down. From the heights of the 1970’s and 1980’s, it has fallen 60-80%, depending on which stats you believe. But it is still too high. A couple of hundred thousand women are sexually assaulted or raped every year. We should do something about that. And to some extent, we have (see 60-80% drop in violence rates). But I agree we should do more. And college campus are a good place to start since most sexual violence victims are under 30.

But this isn’t what we should do.

I agree with what Elizabeth Nolan Brown has been saying: if we really want to do something about sexual violence, let’s start with testing the hundreds of thousands of untested rape kits that are lying around the country. Let’s get states to stop forcing women to pay for their own rape exams, as Louisiana just did. Let’s punish everyone who engages in sexual violence, whether they’re an obscure college student or a member of our political elite.

But let’s not take legal shortcuts based on the rantings of radical feminists. That way lies more misery and no progress.

She Said Don’t Hand Me No Lines and Keep Your Hands to Yourself

Those of you who went to college in the 90’s might remember Antioch College’s bizarre sexual assault policy. Conceived by campus activists on a late-night political correctness bender, this policy stated that verbal consent was required for any and all sexual activity. Interpreted strictly, this meant that if you did not ask your girlfriend of four years if it was OK to take off her bra, you were potentially guilty of sexual assault and could be expelled. The policy was widely ridiculed.

This was part of a general push on sexual assault and harassment issues in the early 90’s. It wasn’t unjustified — many universities barely had policies on the subject and those policies that did exist were designed to keep it quiet. My own college was involved in lawsuit when they allegedly failed to deal with incidents of rape on campus.

But, as is often the case with campus radicals, they pushed too far, abandoning the idea of “no more in loco parentis” in favor of universities that were empowered to punish any behavior that anyone considered untoward. A rallying cry at the time was the ultimate subjective view of issue: “if someone thinks they’ve been harassed, they’ve been harassed!”

Guess who thinks those activists had the right idea?

In a letter sent yesterday to the University of Montana that explicitly states that it is intended as “a blueprint for colleges and universities throughout the country,” the Departments of Justice and Education have mandated a breathtakingly broad definition of sexual harassment that makes virtually every student in the United States a harasser while ignoring the First Amendment. The mandate applies to every college receiving federal funding—virtually every American institution of higher education nationwide, public or private.

The letter states that “sexual harassment should be more broadly defined as ‘any unwelcome conduct of a sexual nature'” including “verbal conduct” (that is, speech). It then explicitly states that allegedly harassing expression need not even be offensive to an “objectively reasonable person of the same gender in the same situation”—if the listener takes offense to sexually related speech for any reason, no matter how irrationally or unreasonably, the speaker may be punished.

Among the forms of expression now punishable on America’s campuses by order of the federal government are:

  • Any expression related to sexual topics that offends any person. This leaves a wide range of expressive activity—a campus performance of “The Vagina Monologues,” a presentation on safe sex practices, a debate about sexual morality, a discussion of gay marriage, or a classroom lecture on Vladimir Nabokov’s Lolita—subject to discipline.
  • Any sexually themed joke overheard by any person who finds that joke offensive for any reason.
  • Any request for dates or any flirtation that is not welcomed by the recipient of such a request or flirtation.
  • There is likely no student on any campus anywhere who is not guilty of at least one of these “offenses.” Any attempt to enforce this rule evenhandedly and comprehensively will be impossible.

    That last part might be the most important. If a University decides they want to get rid of a student, they can easily find some way he has violated this policy. Maybe someone got offended when he told the joke about the bishop, the monkey and the six cantaloupes. Off with his head!

    It’s actually even worse than this. Through the Violence Against Women Act and Title IX, the federal government has been pushing universities toward using a “preponderance of evidence” in sexual assault and harassment cases with the implied threat of revoking their federal financial aid. Under this standard, you don’t need to prove someone committed a sexual assault in order to boot him off of campus and ruin his career. You only have to think there’s enough evidence that he probably did so (this is the standard used in civil cases and grand juries). When you add in that campus courts are often kangaroo courts with rules of evidence and testimony that come from watching Matlock with the sound off, the situation is frightening.

    Obviously, no one doubts that universities should protect women from sexual harassment and assault. But they should not do using a standard of justice that would be laughed out of North Korea. We should strive, wherever possible, to make our college campus more free than the rest of society when it comes to freedom of expression. College is where you are supposed to rub elbows with bad ideas and say stupid things.

    For far too long, these policies have advanced because their proponents have successfully painted their opponents as evil sexist monsters who want women to be groped and harassed. Such tactics were used to renew the VAWA despite serious problems with the law. But when we’ve gotten to the point where someone can be thrown out of college because a student court thinks it likely that he made a dirty joke, haven’t we gone too far?

    Keeping You Gun Ports Closed

    Diversity training, dumbed down to it’s lowest common denominator. Our modern coed military is still trying to come to grips with what the rest of society learned eons ago, that when men and women are thrown into the mix, attachments can develop, and so can criminal activity. Check out this new Navy poster that some harpy feminist (not even in the Navy) made about sexual assault. Although not taking credit for it, they sure think it is worthy of defending it, no subtlety here:

    A poster about sexual assault displayed on the U.S. Navy’s Facebook page is causing quite a stir. Titled “Sexual Assault Prevention Tips,” the poster advises readers not to assault anyone.

    “When you see somebody walking by themselves, leave them alone!” it reads. “If you pull over to help someone with car problems, remember not to assault them!”

    The poster doesn’t stop there.

    “USE THE BUDDY SYSTEM! If you are not able to stop yourself from assaulting people, ask a friend to stay with you while you are in public,” the poster continues. “Don’t forget, you can’t have sex with somebody unless they are awake!”

    Dear feminist shrew, your poster is neither witty, clever, or particularly illuminating, it is insulting, stupid, and rather telling about your sexist attitudes towards men. I guess she thinks this will cause a collective palm meet forehead moment with all men, who will take note of the light bulb above them and say ,”Now that you told me, I get it, I now see that NO really does mean NO, I’m giving up my raping ways for good, thank you”.

    “As a woman, I take absolutely no offense to this poster. I find it extremely informative. It’s not meant to be funny and I don’t see any humor in it,” one woman explained. “I think it’s sad that so many people can’t see the real objective behind this poster. Truth is, you can present rape in a light manner or a serious one. Doesn’t change the fact that rape exists, has always existed and will always exist as long as there are humans on earth.”

    Yes, rape does exist, but those in the 99th percentile that know better don’t need you to tell them how to behave, and the rest are not going to change their ways over some dopey poster, but thanks for making men feel like creeps. I can see the success of this approach in other areas as well. How about 10 tips for “Don’t rob people’, “Don’t eat people”, “Don’t pee on people”, of course what we really need is ,”Don’t be mean to be people”.

    Here’s a tip to the war department, don’t let folks with an agenda pen your military posters, it makes you look foolish in the process.

    My favorite is number 6 about the buddy system, two male brains wrapped together might equal enough will power to stop the act of rape. Maybe you should take 2 or 3 friends with you, increase those odds of the female escaping unscathed.