College Sexual Consent Rules are Unfair To Boys

There’s so much in the news lately about the “crisis in education” for girls. It is increasingly clear, however, that our boys are also in crisis. Statistically, boys drop out of high school at higher rates than girls. Boys get lower grades and report liking school less. Men enter college at lower rates than women, and are more likely to drop out once they get there. Women receive the majority of master’s and doctorate degrees. The suicide rate is about four times higher among men than women. They suffer higher rates of incarceration, car accidents, drug and alcohol addictions, and addictions to pornography. It isn’t easy to be a young man these days.

In addition, male college students now face expansive consent guidelines that are near impossible to follow. The U.S. Department of Education places full responsibility on colleges and universities to act as investigator, judge, and jury for accusations of sexual assault on campuses. Many schools have been accused for years of being too lax on investigating campus sexual assaults. Now many colleges and universities have now responded by implementing mandatory “affirmative consent” (“yes means yes”) policies.

In 2015, California and New York passed laws requiring colleges to use affirmative consent as the standard in campus disciplinary proceedings. And a dozen other states are considering similar legislation. These guidelines require a student accused of sexual assault to prove that he obtained consent for every act of intimacy. Students who cannot prove that he obtained “active, ongoing, unambiguous consent to sexual activity” has violated campus sexual assault policies. And they can face discipline up to and including expulsion.

Are Boys Denied Due Process?

The way in which these sexual consent policies are being implemented denies due process for accused students, who as of now are exclusively male. According to one study, more than 100 lawsuits have been filed by accused students against their universities and colleges alleging that they have been deprived of their due process rights. Most commonly, these lawsuits allege inadequate legal representation at hearings, the inability to cross examine their accusers, and the lack of procedural safeguards.

Perhaps the most common allegation is that proceedings for sexual assault cases use a very low standard of evidence. In Title IX proceedings, administrators just have to be more sure than not—or 50.01 percent sure—that some form of misconduct occurred. Which of course means they can be 49.99 percent sure that the misconduct didn’t occur. Some students who assert that they have been falsely accused feel that they have no protections. Boston University’s student newspaper, The Daily Free Press, has even claimed that false accusations are completely acceptable. “We would rather see someone falsely accused than see someone avoid coming forward for fear of retribution for wrongly accusing someone,” the editors wrote.

Don’t take my word for it—in an editorial in the Boston Globe, 28 Harvard Law School professors protested that the sexual assault procedures are “overwhelmingly stacked against the accused.”

The practical effect of these guidelines is to find male students guilty as charged, simply because of their gender. There is an atmosphere on many campuses where it has become completely legitimate to demonize all male students as dangerous predators who have to be taught not to be rapists. As the mother of two sons, I see no evidence that the average college male is a predatory rapist-in-waiting looking to force himself on innocent coeds.

Assault Or Hookup Culture?

Rather than an epidemic of sexual assault, from my perspective, what exists on campus is a hookup culture where male and female students are both drunk and having one-night sexual encounters. They are equally responsible for these ‘hookups’. I see this approach as sexist, infantilizing, and discriminatory to grant women greater protections than men engaging in the same consensual behavior.

When drugs and alcohol are involved, the line of sexual consent becomes murky. No means no, but what exactly means yes? It isn’t always clear. And there are gray areas—when the student is ambivalent or when something ends up happening that a student never intended. In many “he said/she said” situations, neither student can remember clearly. And yet under sexual consent guidelines, the male student is still supposed to be able to ascertain whether the female student is intoxicated, the degree to which she is impaired, and whether she understands what she’s doing. Even if he’s drunk himself.

These days female students get drunk, hook up, and make poor decisions just like the male students. Regretting drunk hookup sex is not the same as sexual assault. I don’t want my daughter, or anyone else’s daughter, to be sexually assaulted. But I also don’t want my sons to be accused of assault without the ability to defend themselves. I don’t want to have their lives ruined by being wrongfully expelled from college. Colleges are best suited for teaching, not for adjudicating sexual assault claims. Some colleges failed egregiously in the past to take sexual assaults seriously. But that doesn’t justify the degree to which the pendulum has swung in the other direction against a generation of young men who didn’t have anything to do with past wrongs. Our young men deserve better.