Oct 222014

Hooking Up at an Affirmative-Consent Campus? It’s Complicated

Emily Bazel
October 21, 2014

One afternoon during Labor Day weekend, a group of 15 or so Yale freshmen met in a classroom where history and French classes would soon be held. As they snacked on pretzels and Skittles, a few volunteered to act out a series of scenarios in which one student asks another out for frozen yogurt. In the first bit of role playing, one student was told to make it clear, in an easygoing way, that he or she wants to go out. The recipient of the invitation was told that he or she also wants to go but has a paper due. “How can you show enthusiasm while still turning down the invitation?” a prompt on a card asked. The answer generally wasn’t hard to convey or, for the freshmen watching, to interpret. Most students found that they knew how to demur while keeping the door open for next time.

In the second scenario, the stakes rose. Now the inviter must get the other person to the frozen-­yogurt shop. And the invitee does not want to go, although — like most of us — he or she doesn’t want to be rude. “How would your character handle this unwanted invitation?” the second card read. The interaction made everyone in the room uncomfortable, as the inviter grew increasingly persistent and the invitee tried to fend the other off.

The intended lesson of this 90-minute workshop was that the line between a request and a demand, welcome interest and unwanted pressure, is usually fairly obvious. “This is the skill set people hammer out as little kids,” says Melanie Boyd, an assistant dean of student affairs. She wants students to realize that they know how to recognize agreement, refusal and ambiguity.

The workshop reinforced policies, newly adopted by a growing number of universities, requiring students to make sure they have continuing affirmative consent for every phase of a sexual encounter. The policies, many of which have gone into effect in the last year, were created to help clarify internal university investigations of sexual-assault accusations. In the past, the main question was whether the person (usually a woman) who claimed that she was raped had made it clear that she said no (“No means no”). The new rule shifts the inquiry to whether the student accused of assault got a signal of consent (“Yes means yes”). In California, Gov. Jerry Brown recently signed an affirmative-consent bill, making “yes means yes” the standard at the state’s colleges and universities. To continue to receive state funds for student financial aid, California institutions investigating allegations of sexual assault must determine whether both parties gave “affirmative, conscious and voluntary agreement.” Lack of resistance and silence no longer constitute proof of consent.

“Yes means yes” is part of a new conversation on campus. When I was a Yale student more than 20 years ago, I remember a few women setting up a microphone, after a Take Back the Night march, to tell stories of what we called date rape. But I don’t remember anyone thinking the university would do anything about it. Ten years ago, I wrote about a handful of women who wanted better treatment from Yale, but their complaints seemed isolated and not much came of them. Then beginning around 2011, student activists from across the country started going public. They found one another online, called themselves survivors and demanded that their institutions change. And now everyone is talking about the problem, including President Obama.

The activism has forced not just administrators, faculty members and politicians to reckon with what goes on when students have sex, but also young men on campus. The White House wants them to sign on to a campaign called It’s on Us. Fraternities are holding training sessions about preventing sexual assault (as many cope with related investigations and lawsuits). At Yale, students are required to participate in multiple workshops on sexual misconduct. “You can’t go on Facebook or Twitter for 10 minutes without seeing a post about these issues,” a 19-year-old English major told me.

He was confidently navigating the cultural shift. “Asking, ‘Are you O.K. with this?’ doesn’t have to be uncomfortable,” he said. “And in the aftermath, it’s huge. You have a more positive memory of having sex with that person, because you don’t feel worried.”

But most male students expressed some nervousness about accidentally running afoul of consent rules, especially because drinking usually precedes a casual hookup. “It creates a crazy gray area that scares the hell out of everyone,” one 21-year-old economics major told me. Some wondered whether training can really prepare you for what is often sex between relative strangers. One freshman woman explained the complicated dynamic by telling me about another freshman-orientation workshop, this one on intimacy. She was startled to hear several men say that they found holding hands more intimate than getting a hand job. The male students I talked with pointed out that holding hands, especially in public, is something you do when you are in a relationship, while a hand job could happen during a hookup. In theory, when it comes to sex, it might make sense to talk about what the other person wants as it’s happening. But to do so, you might have to be a little bit tender, a little bit vulnerable. It’s hard to have that sort of conversation if there’s no intimacy.

This is a great law and sets expectations clearly. Just the existence of the law and education on campus will reduce sexual assault and…

“It would be much more gratifying, and in both parties’ best interest, for both the girl and guy to be straightforward — ‘Hey, I’m willing to do this,’ ” a 19-year-old male water-polo player said. “And yet the vocabulary for it is not really there.” Affirmative-consent policies try to address this by recognizing body language as a form of consent. But to most of the men I talked to, this seemed like an invitation to more ambiguity, not less.

One area where the men were more at ease was “bystander intervention.” Universities know that probably the biggest threat to women on campus comes from a small group of serial predators who, research suggests, are responsible for most assaults. Some institutions, like Yale, are training students to watch for warnings signs that someone might be at risk. Sophomores take a workshop in which they watch an eight-minute video of a girl who goes out dancing, drinks to the point of bleary-eyed obliteration and lets a guy take her into a bedroom, where he forebodingly shuts the door. The second half of the video rewinds, noting the points at which a friend, a bartender, a stranger or a roommate could have stepped in to protect her. The interventions mostly aren’t lengthy or heroic. They’re small moments, and students are encouraged to be alert to indications that someone is exerting or feeling sexual pressure and to feel comfortable stepping in.

And they do. Every male student I talked to had a story about intervening on the dance floor or at a party, mostly by just saying hello to someone who looked like a target of unwanted aggressive attention. The students said they looked out for their friends. They said they looked out for nonfriends who seemed headed for drunken trouble. As observers of a potentially fraught sexual encounter, if perhaps not as participants, they did know how to ask, “Are you O.K. with this?” “Doing that yourself is way more awkward than doing it as a bystander,” a 20-year-old rugby player said.

In the quest for a safer campus, it probably comes more naturally to institutions to help students learn prevention than to adjudicate disputes over consent after the fact. Education has always been the business of universities, and while federal law requires those that receive federal funds to make investigating and responding to sexual-assault complaints their business too, it’s not easy. Even as survivors push for more protections for victims, other groups — including more than two dozen Harvard law professors, in a recent statement — are challenging new disciplinary procedures, saying they are unfairly stacked against those accused of sexual assault. This is difficult territory to get right. But for the first time, at some universities throughout the country, relative indifference has given way to dead seriousness.

Emily Bazelon is a staff writer for the magazine and teaches a writing course at Yale Law School.

A version of this article appears in print on October 26, 2014, on page MM13 of the Sunday Magazine with the headline: The Meaning of Yes.

Source: http://www.nytimes.com/2014/10/26/magazine/hooking-up-at-an-affirmative-consent-campus-its-complicated.html

Oct 222014

A false accusation can spell end of college male’s future

October 18, 2014

RE “RETHINK Harvard’s sexual harassment policy” (Op-ed, Oct. 15): While the legal critiques of the Harvard Law School faculty members are critically important, so too, from a psychological perspective, are false sexual allegations by women. Such allegations are dismissed by proponents of affirmative consent policies, who say that women never lie about rape, or who cite a 3 percent to 8 percent rate of false allegations.

A recent summary of the false abuse and rape allegation literature can be found in a 2013 book by Phillip Cook and Tammy Hodo titled “When Women Sexually Abuse Men.” While statistics in this literature are problematic, Cook and Hodo report four studies that found false allegation rates of 62 percent, 41 percent, 50 percent, and 60 percent.

Proponents of these policies also demand an evidentiary standard of “preponderance,” which basically is a coin toss where all a university administrative committee needs to deem a man guilty of sexual assault and expel him is a smidgen above 50 percent.

This “preponderance” standard raises the likelihood that a college male who engaged in consensual sex will be wrongly convicted and expelled. Once this happens, that college male has no future.


Gordon E. Finley

Source: http://www.bostonglobe.com/opinion/editorials/2014/10/17/false-accusation-can-spell-end-college-male-future/LZaqmN6RNjNX6hYdrbs16H/story.html

Oct 222014

Federalizing Sex

Wendy McElroy
October 22, 2014

On Sept. 28, California responded to an “epidemic” of campus rape by passing “affirmative consent” legislation. On Oct. 3, Gov. Andrew Cuomo (D) ordered New York’s state universities to make affirmative consent the centerpiece of sexual assault guidelines. New Jersey, Connecticut, Massachusetts and others are considering similar measures.


They shouldn’t. Why? Affirmative consent embeds a double standard into society and law. The causal “threat of campus rape” is highly exaggerated. And affirmative consent is not offered as a solution but merely as prelude. The federal government has announced the next step: the “It’s On Us” campaign.
But, first, why reject the first step?

A double standard

Under “affirmative consent,” whoever initiates sexual contact is responsible for obtaining explicit and ongoing consent for every act of progressing intimacy. Explicit consent must be serially rendered for each kiss, touch, etc. Advocates scornfully call for critics to use common sense in interpretion but, with any policy that drastically impacts lives, it is prudent to heed literal wording. If the wording is not meant literally, then it should be changed.

The policy embeds a double standard. It establishes two categories of adults: those on campus and those not. Adult students are assumed to need more official protection during sexual contact than other adults.

It also discriminates against males who typically initiate sex. In response to 2011 demands by the Department of Education (DOE) and a threat to cut federal funding, university hearings stripped male students who were accused of sexual assault of due process rights, such as facing an accuser. The presumption of innocence was de facto reversed and accusations deemed true until proven otherwise. Although campus hearings cannot impose criminal penalties, they can ruin lives and prompt police investigations.

The threat is greatly exaggerated

The Bureau of Justice Statistics’ National Crime Victimization Survey (NCVS) claims the rate of sexual assault fell by more than 50 percent from 2008 to 2012. This is America’s most reliable source of crime data. Because it measures crimes both reported and not, the NCVS avoids the accusation that its data excludes non-reporting victims.

The NCVS states that about 350,000 sexual assaults occurred in 2012. Affirmative consent advocates claim much higher rates on campus. One in five female students is the commonly offered statistic. According to the National Center for Education Statistics, “about 12.0 million females” will be on campus in fall 2014. That means some 2.4 million females will be sexual victims over the next few years. Indeed, many campuses indicate a rise in reported assaults.

Why such a discrepancy? Campuses embrace a broad and vague definition of sexual assault; for example, alcohol or drug consumption nullifies apparent consent and “offensive” language is included; no sanction is imposed on false reports.

The next federal step in affirmative consent

Federal impetus is behind affirmative consent and pushing. The 2011 DOE letter threatening the removal of federal funds was pivotal, but other measures ensued. In January 2014, the White House Council on Women and Girls published a report entitled “Rape and Sexual Assault: A Renewed Call to Action,” which repeated the one in five figure. A White House Task Force to Protect Students from Sexual Assault was also established. In Congress, the Campus Accountability and Safety Act, S. 2692 and H.R. 5354, seeks to change the ground rules on sexual assault investigations.

And, now, the “It’s On Us” campaign expands the scope of affirmative consent. The first sentence of the White House fact sheet states “[T]he President and Vice President have made it a priority to root out sexual violence wherever it exists,” with a focus on campuses. The goal: “to fundamentally shift the way we think about sexual assault, by inspiring everyone to see it as their responsibility to do something.”

Third parties are urged to act against anything they view as sexual assault or its promotion, presumably including bad jokes. Males are targeted. The fact sheet states the goal of “engaging men,” “getting men involved,” and “motivating college men.” It declares, “Most men are not comfortable with violence against women, but often don’t speak out because they believe that other men accept this behavior.”

Interestingly, the “It’s On Us” pledge and surrounding text says nothing about campuses, but could apply to any situation. “This pledge is a personal commitment to help keep women and men safe from sexual assault. It is a promise not to be a bystander to the problem, but to be a part of the solution.” How long before affirmative consent attempts to leap into mainstream culture?


Oct 212014

Former UH students sue school over sex assault investigation

Benjamin Wermund
October 20, 2014

Two former University of Houston students. expelled in connection with an alleged sexual assault on campus, are suing the school and two administrators, claiming they were denied due process in the investigation and administrative hearings.

The lawsuit calls into question the pressure universities face to crack down on campus sexual assault. The plaintiffs claim they were kept in the dark about the investigation and given little chance to defend themselves.

In a statement, university officials said they are “committed to the enforcement of Title IX, the protections of due process and other legal rights of the parties involved,” but are prohibited from further comment under the provisions of the Family Educational Rights and Privacy Act.

Such pushback has become more common as universities have worked more to crack down on sexual violence on campus. The complaints are a “natural” part of a necessary evolution on college campuses, which have long been rife with underreported and often ignored cases of rape and sexual assault, said John Foubert, a national expert on campus sexual assault.

Multiple studies have shown that 5 percent of college women are victims of rape or attempted rape every year.

“What’s unfair is there has been rape on college campuses for hundreds of years and nothing has been done about it,” said Foubert, a professor at Oklahoma State University and founder of the nonprofit One in Four, which aims to fight sexual violence on college campuses.

Foubert called the lawsuit a “Hail Mary” pass that includes misunderstandings of sexual assault and of the nature of conduct processes at universities.

According to the lawsuit, Ryan McConnell, a former UH student, went drinking at the Den, a campus bar, on Nov. 19, 2011. While there, he met a female student, and the two ended up kissing, then going back to McConnell’s room at the Calhoun Lofts together. There the two, heavily intoxicated, according to the lawsuit, had sex and fell asleep naked on the floor.

McConnell’s girlfriend, Natalie Plummer, came home to find the two on the floor. Plummer made a video recording of the two “because she was mad that McConnell was cheating on her and wanted to be able to confront him about his behavior later,” the lawsuit said.

Plummer led the female student into the hallway and to the elevator, where she recorded her again, according to the lawsuit. The female student was found naked in the elevator by other students and UH police were called.

According to the lawsuit, UH police, along with the prosecutor, determined there was insufficient evidence that any criminal conduct occurred, in part because “the Female UH Student ‘has no memory’ of the incident.”

Plummer posted a photo of the incident on Facebook and later deleted it, and also shared the two videos with a friend. The videos later ended up in the hands of the Harris County Sheriff’s Office.

Three months later, the student filed a complaint with the university against McConnell, saying she believed she was a victim of sexual assault. On March 12, 2012, Richard Baker, a UH assistant vice chancellor and vice president, sent McConnell a letter notifying him that the university was opening an investigation. According to the lawsuit, Baker did not let McConnell know he was the target, but rather said he had “been identified as someone who may have information pertinent to the investigation.”

On Sept. 30, Baker sent McConnell and Plummer a letter saying Baker’s office would conduct an investigation, with findings based on “a preponderance of the evidence.”

McConnell and Plummer submitted written defenses, and Plummer and her attorney met with Baker on Nov. 8. The lawsuit alleges that Baker made several attempts to exclude the attorney from the interview. The lawsuit also claims that Baker asked about evidence that had not previously been provided to McConnell or Plummer, despite numerous requests from their attorneys.

In February, Baker submitted his findings to the dean of students, who concluded that the video “appeared to capture Mr. McConnell physically touching [the Female UH Student] in a sexual manner and, his girlfriend, Natalie Plummer, striking her,” according to the lawsuit, which disputes those interpretations. The report also concluded that McConnell and Plummer “took abusive sexual advantage” of the student by taking a photograph and the two videos and had created an intimidating or hostile environment for her by “preserving then destroying” and “sharing” the video from the dorm room.

McConnell and Plummer had appeal hearings in March and April, but they claim in the lawsuit that they were denied due process in them. They weren’t allowed to cross examine witnesses or to call witnesses of their own, the suit states.

Baker relied upon evidence neither student had seen before, the lawsuit alleges.

On Sept. 24, the two were informed that Richard Walker, the dean of students, agreed with Baker’s findings and that they were expelled.

They are now suing UH and Baker and Walker, claiming, in part, that their constitutional rights to due process were violated.

Source: http://www.chron.com/local/education/campus-chronicles/article/Former-UH-students-sue-school-over-sexual-assault-5834816.php?cmpid=twitter-mobile

Oct 212014

Why One Male College Student Abandoned Affirmative Consent

Conor Friedersdorf
October 20, 2014

After I asked college students and recent grads to comment on California’s affirmative-consent law, several different respondents shared a controversial perspective best captured in the email below. The male writer reports that he began college determined to ask women for explicit verbal consent during sexual encounters, but abandoned that approach over time.

Here is his explanation of why:

Dear Conor,

I am a recent graduate, and want to share with you a few of my experiences that I think are illustrative of why the new affirmative-consent laws are out of touch with the reality of the human experience. I hope they can be of some value to the debate.

I was raised by a left-leaning, feminist family who (at least I thought at the time) were relatively open about sex. But while I arrived at college with a healthy respect for women, I was totally unprepared for the complex realities of female sexuality.

“Oh,” sighed one platonic female friend after we had just watched Harrison Ford grab Alison Doody and kiss her is Indiana Jones and the Last Crusade, “Why don’t guys do that kind of thing anymore? Now days they are all too scared.”

On our second night together, one of my first partners threw up her hands in disgust. “How am I supposed to get turned on when you keep asking for permission for everything like a little boy?” She said. “Just take me and fuck me already.”

She didn’t stay with me for long.

This would be a recurring theme. More than once I saw disappointment in the eyes of women when I didn’t fulfill the leadership role they wanted me to perform in the bedroom. I realized that women don’t just desire men, they desire men’s desire―and often they don’t want to have to ask for it. I also realized that I was in many ways ashamed of my own sexual desire as a man, and that this was not healthy.

At this point I was experiencing some cognitive dissonance with my upbringing, but in time learned to take an assertive lead unless I got a “no” or otherwise thought I was about to cross a boundary as indicated by body language.

One night I ended up back in a girl’s room after a first date (those do happen in college). She had invited me in and was clearly attracted to me. We were kissing on her bed, outer layers of clothing removed, but when my hands wandered downward she said, “No, wait.” I waited. She began kissing me again, passionately, so again I moved to remove her underwear. “Stop,” she said, “this is too fast.” I stopped.

“That’s fine,” I said. I kissed her again and left soon after, looking forward to seeing her again.

But my text messages received only cold, vaguely angry replies, and then silence. I was rather confused. Only many weeks later did I find out the truth from one of her close friends: “She really wanted you, but you didn’t make it happen. She was pretty upset that you didn’t really want her.”

“Why didn’t she just say so then, why did she say we were moving too fast?”

“Of course she said that, you dumbass. She didn’t want you to think she was a slut.”

Talk about confusing. Apparently in this case even no didn’t mean no. It wasn’t the last time I’ve come across “token resistance” that is intended to be overcome either. But that’s a line that I am still uncomfortable with testing, for obvious reasons.

But I have learned not to ask when it clearly isn’t necessary, or desired.

One of my fondest sexual experiences started with making eye contact across a room, moved to a dance floor, and then to an empty bathroom. Not a single word was ever spoken, because none had to be. We both knew and understood. I was a man and she was a woman, and we found ourselves drawn together in that beautiful way that men and women have been since a time immemorial, a time long before language was ever spoken.

Today in California this would be considered rape. I find that very sad. Women are not infantile. They can make their own decisions about sex, and that includes being able to say no―even if they don’t want to have to say yes.



The experiences that this young man had will resonate with some readers. Others will find his descriptions unreliable or his conclusions wrongheaded. Agree or disagree with him, this much is clear: If his attitude persists among a significant number of college students, it will be a huge obstacle to spreading affirmative-consent culture.

How might different supporters of affirmative consent respond to this young man? They might say:

Under an affirmative-consent standard, consent need not be verbal. Depending on the details, it’s possible that your “saw her across the room” hookup was fine.
Perhaps women supposedly put off by your attempts to seek consent were actually reacting to a lack of confidence or wimpy manner, not consent-seeking itself, which can be sought in a confident, assertive, charismatic manner.
Some women may put off by explicit consent-seeking, but others are turned on by it. And even if some subset of women dislike explicit consent-seeking, that doesn’t mean the standard should be abandoned, even if it does “cost” men some hookups, as if society should care about that when it adopts norms. This will reduce rape and sexual assault, a benefit that is much more significant than the trivial cost of a 22-year-old guy not having sex quite as often, or 22-year-old women who can no longer offer “token resistance” and get laid.
The idea that women offer “token resistance” enables rapists and other sex criminals and should not affect consent-seeking. (The writer seems to agree in part when he notes that he is “still uncomfortable” testing “token resistance.”)
I’d be curious to see a frank debate between this young man and critics of his position. (Would anyone be persuaded to refine their position or learn how to better persuade their critics?) But the sensitivity of the subject, the understandable aversion most people have to speaking on-the-record about their past sexual encounters, and the way both politically correct stigma and misogynistic threats are used to police discourse on this subject make it less likely that college men who feels this way will have open, rigorous on-campus exchanges with those whose perspective is different.

My hope is that emails from students and recent grads about any aspect of the affirmative-consent debate will air a broad spectrum of views and facilitate frank exchanges. If you have thoughts or insights informed by what you’ve seen or experienced, please share, anonymously or not, by emailing conor@theatlantic.com.

Source: http://www.theatlantic.com/politics/archive/2014/10/why-a-college-student-abandoned-affirmative-consent/381650/2/

Oct 202014

In Rules on Campus Sexual Violence, Education Dept. Emphasizes Training

Max Lewontin
October 20, 2014

New federal rules issued on Monday aim to make campuses safer by requiring colleges to train students and employees on preventing sexual assault, dating violence, domestic violence, and stalking. The rules also include new categories for identifying hate crimes (gender identity and national origin) and specify that students can choose advisers, including lawyers, to accompany them in campus disciplinary proceedings.

“These regulatory changes provide new tools to improve campus safety,” Arne Duncan, the secretary of education, told reporters on Friday.

One advocate called the new rules momentous. They represent “the most significant change in campus-sexual-assault policy in 20 years,” said S. Daniel Carter, director of the 32 National Campus Safety Initiative of the VTV Family Outreach Foundation, a group representing survivors and victims of the mass shooting at Virginia Tech in 2007.

The U.S. Department of Education published the rules in Monday’s Federal Register. They interpret the Violence Against Women Act signed last year by President Obama and amending the campus-crime law known as the Clery Act. After the Education Department issued proposed rules, in June, that it drew from the consensus of an expert panel of negotiators, it considered public comments and made some minor changes, such as requiring colleges to disclose “unfounded” reports of sexual assault.

The final regulations come as colleges, under pressure from activists and government officials, are grappling with their legal responsibility to investigate and respond to students’ reports of sexual violence. The Education Department is now investigating more than 80 colleges for possible violations of gender-equity law involving alleged sexual misconduct, and federal and state lawmakers have introduced legislation to improve colleges’ response to the issue.

The rules will take effect in July 2015. Until then, colleges are expected to make a “good-faith effort” to comply, the department said.

The Chronicle spoke with advocates, experts, and higher-education officials about the impact of the new rules on colleges regarding sexual assault.

What are the main requirements of colleges?

Colleges are required to provide training to faculty and staff members as well as students. The training must clearly define terms such as “consent” and outline campus policies on sexual misconduct.

The goal is to improve transparency on how institutions handle students’ reports, said Lisa Maatz, vice president for government relations at the American Association of University Women. The regulations, she said, “make it really clear that each school has to talk about each step of the disciplinary proceedings.” That’s important for students who report assaults as well as the accused, she said.

In addition to collecting a wider range of campus-crime statistics, colleges must publicly report the number of sexual assaults that the campus police and other law-enforcement officials have determined to be “unfounded.” Previously, such incidents were excluded from campus-crime statistics.

The term comes from the Federal Bureau of Investigation, which holds that crimes found to be “false and baseless” by law-enforcement officials should be excluded from official tallies of reported crimes, said Mr. Carter. But under the new regulations, those reports will be counted in a separate category. That does not mean, Mr. Carter cautioned, that cases in which an accused student is found not responsible belong in that category.

How much of this are campuses doing already?

It varies by institution, said Connie L. Best, a professor at the Medical University of South Carolina who directs the National Crime Victims Research and Treatment Center. “Some are better at policies, but not so much in training,” said Ms. Best, who was one of the negotiators on the Education Department’s rule-making panel.

“At least now everybody knows kind of what the marching orders are,” she added.

Draft regulations and settlements between the department and colleges under investigation had given some hints, especially with respect to training. “Smart institutions, once they saw the handwriting on the wall, started making these changes early this year,” said Ms. Maatz.

What does it mean that students can now have “advisers” in campus hearings?

The provision allows both alleged victims and accused perpetrators to choose a lawyer, family member, campus official, or other advocate to appear with them throughout disciplinary proceedings. Amid much scrutiny of how colleges handle sexual-assault cases, advocates for both parties see the change as a significant milestone.

The interests of students in these cases, as well as the interests of colleges, are different, said Laura L. Dunn, a self-identified survivor of sexual assault and advocate for victims who also served as a negotiator on the department’s rule-making committee. “The school does have a dog in the fight—they’re worried about liability on either side,” she said. “So it really is important for there to be independent advisers.”

While a student can choose his or her own adviser, the college can limit that person’s participation in campus proceedings.

That was a compromise after the rule-making panel turned briefly contentious, as negotiators representing colleges argued against the presence of advisers, who they said would alter the process. Dana Scaduto, general counsel at Dickinson College and a former president of the National Association of College and University Attorneys, called allowing advisers “the single most problematic provision” in the rules, not least because some students could afford lawyers, and others could not.

What isn’t in the regulations that advocates are still discussing?

In a move that disappointed some advocates of victims’ rights, the regulations remain vague on what standard of evidence colleges should use in deciding sexual-assault cases. The Education Department has issued guidance that colleges should use the “preponderance of the evidence” standard, or more likely than not, rather than the stricter “beyond a reasonable doubt” criteria. But the new regulations do not specify a burden of proof.

The rules also do not define consent, as some advocates had hoped. Affirmative consent—often described as “yes means yes” rather than “no means no”—is now the legal definition on campuses in California, and many other colleges have recently adopted it.

A Campus Sex-Assault Primer
Looking to understand the campus sexual-assault issue? Click to view a shareable brief.

Ms. Dunn would have wanted the department to specify how students found responsible for sexual assault would be penalized by colleges, she said.

Joe Cohn, legal and policy director at the Foundation for Individual Rights in Education, which has advocated for due-process protections for accused students, worried about how the regulations define “stalking.” The definition, he said, removes the idea that offenders must have an intent to deliberately stalk victims that is present in other definitions of “stalking” as a crime.

What happens between now and July, when the regulations take effect?

Campuses will probably move toward compliance. “Many institutions have already begun conducting various types of training,” said Ada Meloy, general counsel at the American Council on Education.

“Every college wants to have as clean a record as possible with regards to sexual assault, and institutions are endeavoring to carry out the regulations,” she said.

Pressure runs high when more than 80 colleges are under federal investigation for possible violations of the law. “I hope that when they are audited or reviewed by the Department of Education,” said Ms. Meloy, “that those good-faith efforts will be recognized.”

Source: http://chronicle.com/article/In-Rules-on-Campus-Sexual/149521/

Oct 202014

The Argument Against Affirmative Consent Laws Gets Voxjacked

Cathy Young
October 15, 2014

Two days ago, Ezra Klein, the editor of Vox.com, penned what may be the most repulsive article yet on the subject of affirmative consent laws. Klein’s argument in a nutshell: yes, these laws are overbroad and will probably result in innocent men being expelled from college over ambiguous charges. Which is good, because the college rape crisis is so terrible and the need to change the norms of sexual behavior is so urgent that this requires a brutal and ugly response. Or, as Joe Stalin was fond of saying, “When you chop wood, chips must fly.” That’s the Russian equivalent of “You can’t make an omelette without breaking eggs.”

Toward the end, Klein writes:

Then there’s the true nightmare scenario: completely false accusations of rape by someone who did offer consent, but now wants to take it back. I don’t want to say these kinds of false accusations never happen, because they do happen, and they’re awful. But they happen very, very rarely.

I only just found out, from this column by James Taranto, that the link in this passage goes to my recent piece on Slate XX.

The whole point of which was to rebut the idea that false accusations of rape are so infinitesimally rare that they needn’t be a serious factor in deciding whether laws dealing with sexual assault are unfair to the accused.

I repeat.

I wrote a piece (extensively fact-checked, I might add) arguing that wrongful accusations of rape (either deliberately false or based on alcohol-impaired memory and mixed signals) are not quite as rare as anti-rape activists claim, and that we need to stop using their alleged rarity to justify undermining the presumption of innocence in sexual assault cases.

And Ezra Klein cites this very piece in an article that justifies, pretty much, throwing the presumption of innocence out the window.

Is there a word for having one’s writing hijacked to support (in an egregiously misleading way) the very point you are arguing against?

I suggest “voxjacking.”

Source: http://reason.com/blog/2014/10/15/the-argument-against-affirmative-consent

Oct 202014

Tally of federal probes of colleges on sexual violence grows 50 percent since May

Nick Anderson
October 19, 2014

The number of federal investigations into how colleges handle sexual violence reports has jumped 50 percent in the past six months, reflecting a surge of recent discrimination claims and the difficulty of resolving high-profile cases that often drag on for years.

On May 1, the Education Department’s Office for Civil Rights released the first public list of colleges and universities under scrutiny for possible violations of federal law in their responses to sexual violence allegations.

At the time, 59 cases were pending at 55 schools. As of this week, 89 cases are pending at 85 schools. Eight cases are more than three years old, including one focused on the University of Virginia, one on Harvard Law School and one on Princeton University.

The rapidly rising total poses challenges for the Obama administration as it seeks to lead a national campaign against sexual assault on college campuses. The students whose complaints sparked many of the cases are anxious for federal action, while colleges want to escape a list that puts an unflattering question mark next to their brand name.

Catherine E. Lhamon, assistant education secretary for civil rights, said more students are turning to her office, known as OCR, for help as they have become aware that the government is willing to intervene to guarantee fair treatment.

List: Sexual violence investigations
“The list is growing partly because we’ve told people we will be there for them,” Lhamon said. “And there’s value in coming to us. I’m really pleased that people trust us — and hope to earn that trust.”

Some higher education officials wonder why the government can’t accelerate. “At some point, that list will be so big it will be meaningless,” said an official at one West Coast school who spoke on the condition of anonymity because the school is under federal investigation.

Lhamon said OCR’s staff has shrunk — to 544 full-time positions this year from 619 in 2011 — as its workload has grown. Its mandate is to prevent discrimination on the basis of race, ethnicity, age, disability or gender in federally funded schools. Sexual violence issues at colleges account for a small share of the agency’s cases.

Lhamon, who took office in August 2013, said she wants, as often as possible, to resolve investigations within six months. “I have made it a priority to close out our old cases as quickly as we can,” she said.

But since May 1, just two schools have dropped off the sexual-violence investigation list.

In June, OCR closed a six-month probe of the State University of New York at Binghamton because it determined that the issues at hand were covered through a previous accord with the SUNY system. In September, OCR resolved a four-year-old case at Ohio State University after investigators found that written policies and procedures for responding to reports of sexual violence and harassment did not follow requirements of the anti-discrimination law known as Title IX.

Schools under OCR scrutiny are generally loath to say anything about the cases beyond affirming cooperation with the government. Officials at U-Va., Harvard and Princeton declined to discuss the longevity of inquiries into their schools. The U-Va. case began in June 2011. The Harvard Law and Princeton inquiries date to December 2010. (A separate investigation of Harvard College, the main undergraduate unit of the university, began six months ago.)

Harvard and Princeton this year announced new policies on sexual violence, which could clear the way for ending their OCR investigations. But 28 current and retired members of the Harvard Law faculty have criticized the university’s action, saying it failed to provide due process protections to accused students.

“Harvard apparently decided simply to defer to the demands of certain federal administrative officials, rather than exercise independent judgment about the kind of sexual harassment policy that would be consistent with law and with the needs of our students and the larger university community,” the professors charged Tuesday in an opinion column published in the Boston Globe.

The university said its policy provides “an expert, neutral, fair, and objective mechanism for investigating sexual misconduct cases involving students.”

Much of OCR’s power stems from its authority to halt federal funding to colleges found to be in violation of the law. But the agency has never taken that step.

Instead, OCR uses the financial threat as leverage to negotiate measures schools will take to improve their sexual violence policies whenever the agency finds shortcomings. Those negotiations are sometimes prolonged.

The schools under investigation represent a broad swath of higher education: a community college district in California, a state university system in Alaska, two professional schools, several liberal arts colleges and dozens of public and private universities.

Catholic University is under scrutiny in the District. Listed from Maryland are Johns Hopkins University, Frostburg State University and Morgan State University. In addition to U-Va., Virginia schools on the list are James Madison University, the College of William and Mary, the University of Richmond and Virginia Military Institute.

Investigations can begin in two ways: through a complaint from an individual or through a government decision to examine records and policies in what is called a “compliance review.”

Interviews with officials at four of the 85 schools on the list — all speaking on the condition of anonymity because their cases are pending — cast light on how investigations proceed. First, a regional unit of OCR notifies a school of a new case. Then, it makes a substantial request for records and information. It might summarize an allegation from an individual, if there is one, and ask for the school’s version of what happened. The request typically seeks records on sexual violence incidents for the previous three years, as well as information on the school’s protocol for response and discipline.

There might be phone calls between the school and OCR to hone or clarify the request. All of this can take several weeks. “It’s a lot of time. A lot, a lot of time,” said the West Coast school official. “We produce so much material. They’re going to look at all your policies, all your practices.”

Eventually, OCR schedules a visit. This can occur several months after the investigation begins. Focus groups are organized to talk with OCR about issues related to sexual harassment and violence. The groups might be drawn from faculty, staff, student-athletes, resident assistants, fraternity members, sorority members and campus organizations.

Schools must give public notice of the OCR visit, disclosing information on how to contact investigators. One official at an East Coast school under investigation said the school was not allowed to observe OCR’s meetings with focus groups or other community members. “We have no idea what they’re going to be told, who is telling it, who may have a biased or skewed version of the facts,” the official said.

Sometimes, OCR makes multiple campus visits. Afterward, schools wait as the inquiry continues. At some point, the regional unit of OCR sends preliminary findings to Washington. Final determinations and settlements come from headquarters. Some school officials complain that they are not likely to be shown any draft findings before they are made public.

In April, Tufts University rebelled. The prestigious university in Massachusetts had reached an agreement for measures to resolve a long-running OCR investigation. Then, it abruptly revoked its approval, objecting to certain findings that the university failed to comply with the law in its handling of sexual assault and harassment complaints.

Federal officials warned the standoff could lead to an unprecedented cutoff of funding for Tufts. A few weeks later, the university relented and gave renewed approval to the resolution. The episode offered a rare public glimpse of the brinkmanship behind these investigations.

An official at another East Coast school under investigation said the school simply wants to cooperate and move forward, as fast as possible. “Right now, we’re just sort of hanging,” he said, “waiting for them to tell us what needs to change, what doesn’t need to change.”

Source: http://www.washingtonpost.com/local/education/tally-of-federal-probes-of-colleges-on-sexual-violence-grows-50-percent-since-may/2014/10/19/b253f02e-54aa-11e4-809b-8cc0a295c773_story.html

Oct 202014

‘Yes Means Yes’ Laws also Hurt Women

Ashe Schow
October 16, 2014

A lack of due process in “yes means yes” — or “affirmative consent” — laws, which seek to define how college men and women engage in sexual activities, isn’t just harmful to men.

Under the recently passed California consent law, colleges and universities have to be just 50.01 percent sure that accusers are telling the truth in order to brand the accused rapists and possibly expel them from school. This “preponderance of evidence” standard can be decided without allowing the accused legal representation or the ability to cross-examine their accusers and witnesses.

Thus far, the focus among critics has been on how this disregard for the Fifth and Sixth Amendments — the basic tenets of the criminal justice system — hurts men, as they are the most likely to be on the receiving end of such treatment. But what isn’t being discussed is the fact that these laws have the potential to hurt women as well.

The laws do not explicitly say that “victims” are all women or that the accused are all men. It couldn’t. Currently, the focus — whether from the Obama administration’s “Dear Colleague” letter or feminist activists — has been on men being the perpetrators. But writing a law to that effect would have caused some serious civil rights violations.

Proponents of the law, such as Vox’s Ezra Klein, note that it is simply a “rare” scenario for an innocent man to be falsely accused, but believe such cases are “necessary” for the law to ultimately work.

Putting aside the fact that this would require defining up to 10 percent of accusations as “rare,” the important point is that this law fosters an increase in such accusations. When the “preponderance of evidence” standard means that the accuser’s story just has to be slightly more believable than the accused, and due process rights are ignored, the attention this law has received (from proponents and opponents) has made it known enough to be a problem.

But here’s a potential scenario the law could create that no one’s talking about: What happens when young men, fearing they will be falsely accused by women they’ve slept with (even if they think that ever-important trust has been achieved), start pre-emptively accusing women of sexual assault because, as the law stands, a man has just as much a right to accuse as a woman?

Usually, men who accuse women of rape are subject to ridicule and portrayed as weak, but a 2012 study published in the American Psychological Association found that 19 to 31 percent of male college students reported experiencing unwanted sexual contact, according to a reading of the study from Pacific-Standard Magazine, a social-science news website. The study’s researchers, according to Pacific-Standard, claimed the vast majority of that unwanted contact was from women.

And what happens if a man counter-accuses a woman who says she couldn’t give consent because she was too drunk by claiming that he was also too drunk to give consent? Should one of these scenarios occur (and I predict they will as those horror stories Klein admonished permeate college campuses), the law would either have to give the man equal credibility or admit the law is inherently biased.

Of course, such a wash could make the law invalid, as the “he said, she said” defense would crumble when both parties had an equal claim to sexual assault.

A third scenario, involving an accusation between a lesbian couple, is also a possibility. And if you think that same-sex sexual assault doesn’t occur, consider this study from the Wisconsin Coalition Against Sexual Assault, which linked to several studies showing anywhere between 5 percent and 57 percent of lesbians reporting they had experienced “attempted or completed sexual assault or rape by another woman.”

Studies have shown that men are far less likely to report sexual assault than women, but with a law like this, where the choice could be between seeing their futures ruined by an accusation or coming forward with an accusation — young men would likely choose the latter option.

If the law remains as it is written, then women would become just as disadvantaged. If, as opponents predict, the law leads to an increase of accusations, anyone accused — man or woman — would be hurt by the lack of basic due process rights.

Source: http://m.washingtonexaminer.com/yes-means-yes-laws-also-hurt-women/article/2554871

Oct 202014

The Underside of “Affirmative Consent”

Masha Gershman
October 19, 2014

Two college students lie on a dorm room bed, there are soft whispers and light touching, but escalating passions are abruptly interrupted when one student hands the other a sexual consent form. The students’ lawyers, suddenly revealed to be sitting on either side of the bed, dive into heated negotiations over what sexual activities will and will not transpire that evening. That comical video was produced in 2004, but it may seem less absurd now than it did a decade ago.

California’s “Affirmative Consent” bill, signed into law by Gov. Jerry Brown last month, sets a new, strict framework for how college students can engage in sexual activity. According to the bill, it is the responsibility of all parties involved to seek either verbal or nonverbal consent. According to Jessica Pride, a sexual assault lawyer, verbal consent can be a simple yes, or an “uhuh.” Nonverbal can include nodding one’s head or removing one’s clothes. That’s a fairly standard understanding of consent. But the bill also requires that consent be ongoing, and specifies that it can be revoked at any time, marking a departure from traditional practice. Barring incapacitation or force, courts typically follow a “no means no” standard, meaning that if one person tries a sexual move that his partner doesn’t appreciate, it is the partner’s obligation to make that known. And then his immediate responsibility to stop.

“Affirmative consent requires that you get consent before you do something….So if one [partner] touches another, and the other person says ‘I’m not in the mood,’ they’ve already committed sexual assault,” says Joe Cohn, Legislative and Policy Director for the Foundation for Individual Rights in Education (FIRE). “If you don’t ask before you do the next thing, you’ve already violated the rule.” In other words, when two college students engage in sexual activity, any change within that activity—a change of position or rhythm for example, behavior that tends to progress naturally—must now first be granted permission. Otherwise, whoever initiated the change could technically face assault claims.

The bill also states that intoxication automatically prevents people from being able to grant consent, regardless if they do so verbally or otherwise. But the definition of intoxication is vague, and the way schools and individuals perceive it varies. Generally, it hinges on incapacitation, namely, whether or not an individual can appreciate what’s happening to him or her. According to Cohn, incapacitation can include if someone is “totally wasted, drugged against their will, hit on the head with a brick” or is underage. Pride defines the threshold as whether an individual can get behind the wheel of a car and drive. Elena Koukina, a graduate student at the University of California Berkeley, says that at a recent workshop, the line of intoxication was described as, “if that question even arises in your mind then they’re too drunk.”

Let’s not forget, however, that this law applies to colleges, where the reality is that a lot of students get drunk, and a lot of students have sex when they do. According to Pride, alcohol has been a factor in most of her cases. So if intoxication precludes the possibility of consent, and if the threshold of intoxication varies, then many students can potentially find themselves in dangerous territory. Supporters of the bill, like Sarah Green, Title IX officer at Gonzaga University, believe that it eliminates ambiguity and serves to educate students about appropriate sexual interactions. “It opens the dialogue more and it gives a real framework for what appropriate sexual relationships should be. And you don’t get the ambiguous, ‘well, she didn’t say no so it was consent,’” Green says. Dianne Klein, Assistant Media Relations Director at the University of California Office of the President, says that the UC system adopted the affirmative consent standard before the bill was passed in order to “educate students and faculty and staff on their responsibilities. And [to] encourage survivors to report [what happened to them] because it provides clear definitions, and allows them to judge whether what happened to them was sexual assault.”

But it seems that the bill has the potential to generate much more confusion, and create many more problems than the ones it eliminates. Cynthia Garrett is an attorney who lobbied against the bill. According to her, the “revoked at any time” clause can be especially problematic: “This bill doesn’t require any protest, or a victim to say no. The consent has to be ongoing and can be revoked at any time. What if she revokes it in the middle of the act and doesn’t have to say anything—how is he supposed to know?” Most cases will be, like those of decades past, matters of “he said, she said.” What is new, however, is that the burden of proof will fall on the accused, usually a male student. It becomes his responsibility to demonstrate that he received consent, a nearly impossible feat, and without the right to the presumption of innocence afforded in criminal courts.

Here’s where the feds come in. When a claim is raised on college campuses, it will be handled by the procedure outlined in a 2011 edict issued by the Department of Justice’s Office of Civil Rights (OCR). It not only obligates universities to independently handle cases of sexual misconduct, but also prescribes how these investigations and deliberations must be run. Campus tribunals are expected to use the “preponderance of evidence” standard, the lowest possible burden of proof, normally reserved for civil matters involving money or property. In other words, a student would have to be shown “more likely than not” to have committed the crime in order to be found guilty.

The edict also all but eradicates due process. Hearsay counts as evidence. Cross-examination of the accuser is barred, for fear of traumatizing him or her further. While in some schools a lawyer or advocate for each student is permitted to be present, he or she is usually not allowed to speak. “Even in civil law you have protections for lower standards of proof, physical evidence, cross-examination. Cross-examination isn’t to intimidate somebody, it’s to allow a jury or a judge to assess their demeanor. That’s a factor in determining truth,” says Garrett. “There are expert witnesses, criminal psychologists who are experienced in this. [Lawyers] question each juror to make sure they’ll be unbiased before they sit on the jury,” she continues. “There is all kinds of overlay to ensure that a person is presumed innocent until proven guilty.”

On college campuses, cases are investigated by campus police, Title IX officers, and faculty members. But it’s unclear whether they are properly trained to perform such investigations. Green says that Title IX representatives at her university receive training from various presenters on the law’s requirements. According to Klein, the UC system offers extensive training, including “what constitutes as a violation of policy, and how [to] deal with somebody who’s been traumatized.” But those involved in the investigation aren’t judges, lawyers, criminal investigators, or specialists in sexual assault. “You’re taking these very complex cases, handing them over to someone who got trained for a week and who doesn’t need to use evidence,” Garrett says.

Then there is the question of objectivity. Faculty, Title IX officers, and other representatives of the university also deliberate and issue verdicts. And they are undoubtedly aware of the fact that their employer can lose its federal funding if it is found to have violated Title IX by mishandling a case. They have skin in the game, which jurors never do.

FIRE’s Joe Cohn raises a different issue. While campus proceedings aren’t criminal cases, they do have criminal law implications. According to Cohn, anything a student says during an investigation is admissible against him in a criminal court, which is true for any public statements individuals make. The only exception is when an individual was compelled to make those statements. “Technically speaking, student statements in campus judiciaries aren’t compelled because students can always choose to withdraw from the school and not face the tribunal,” Cohn says. But if they do choose to speak in the tribunal, they face a situation where they are responsible for proving their innocence without the representation of a lawyer and without the protection of due process. “So, practically speaking, students are being forced to waive their 5th amendment rights in order to defend themselves on campus.”

If false accusations are negligible or non-existent, then these gaps in the bill are nothing to worry about. And, as Pride explains in reference to the shift in burden of proof, even if a student is found responsible, the punishment doesn’t mean jail time. “Does it mean that more people will be found guilty? Potentially, but in the worst case they get kicked out of school.” But false accusations do happen, and whatever their number they are not so easily brushed aside. If someone is falsely accused and subsequently expelled, what happens next?

Sherry Warner-Seefeld and Judith Grossman can answer that question. Both women’s sons were falsely accused of sexual misconduct, and both have first-hand experience of the campus tribunal process. Sherry’s son Caleb was a student at the University of North Dakota when charges of sexual assault were brought against him by another student, a woman with whom he’d had a relationship a few months prior. Eleven days later, Caleb sat before a university tribunal, facing the dean and a number of other high-level university administrators. Within a few hours, Caleb was found guilty and immediately expelled. His transcript indicated expulsion due to sexual assault, significantly diminishing his chances of transferring to another university.

Soon after, the local police department opened its own investigation into Caleb’s case and found, three months later, that Caleb’s accuser had falsified her report. A warrant was filed for his accuser’s arrest. She fled to California, and the case remains open. Shortly after the police department’s finding, Warner-Seefeld approached the university to clear her son of the charges against him. The university refused for nearly a year, citing various bureaucratic stipulations. Not until Warner-Seefeld attracted significant publicity did UND comply. Caleb had waited nearly 18 months for his name and transcript to be cleared of a false charge. He never went back to school.

Grossman’s son, whose identity she won’t reveal, was accused of sexual misconduct by an ex-girlfriend, and the alleged incident had occurred three years earlier. Her son received a list of allegations that were so vague as to “render any defense virtually impossible,” she says. Eventually, though he was not granted a finding of innocence, he was not convicted, good fortune which Grossman says is due more to more to her own determination and resources than the competence of those sitting on the tribunal.

This summer, Warner-Seefeld and Grossman launched Families Advocating for Campus Equality (where Garrett sits on the Board of Directors) to raise awareness about developments on college campuses and to provide support for families in situations similar to their own. Warner-Seefeld says she has already received 35 calls from families whose sons were accused—they say falsely—since August. Garrett keeps records of lawsuits brought by students who claim they were falsely accused. She has identified 49 such cases since 2011, and her list is growing.

But the numbers aren’t important. The question is whether the practices that universities have in place are fair, and whether they actually serve to make campuses safer for students. At worst, if an innocent person is found responsible, he or she will be expelled. Pride is right about that. But gaining acceptance to another university, not to mention having access to the kinds of jobs available to those with a college degree, becomes that much more difficult, if not impossible.

The situation is especially dire if a guilty person is (rightly) expelled, Cohn emphasizes. In this case, the perpetrator doesn’t go behind bars but is released back into the world, free to repeat the assault. And the new focus and push towards campus tribunals makes criminal convictions much more difficult. “Prosecutors and police chiefs across the country have told me they have only 72 hours to get a rape kit done….After that period of time all of that physical evidence is gone. [If universities tell students,] “the criminal justice system won’t help you, here’s another avenue,” a number of meritorious claims will be diverted to campus. That is a recipe for guaranteeing that violent predators are on the street.”

But the system of handling claims seems to be permanently embedded in the collegiate framework, and the affirmative consent bill is gaining momentum. Versions are being adopted or proposed in New York, New Hampshire, and New Jersey. Male students might be wise to, quite literally, hang on to their britches.

Source: http://www.the-american-interest.com/articles/2014/10/19/the-underside-of-affirmative-consent/