Rape, Rape-Rape and Sexual Assault at Colleges

The battle over what constitutes sexual assault on college campuses is reaching new levels of absurdity.

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If you haven’t read Simon van Zuylen-Wood’s terrific piece in the May issue of Philadelphia magazine on sexual assaults at Swarthmore College, do so. It’s called “Rape Happens Here,” and it starts off with a young woman’s description of an incident in her senior year as a Swattie. Here is that description:

[S]he was in her room with a guy with whom she’d been hooking up for three months. They’d now decided — mutually, she thought — just to be friends. When he ended up falling asleep on her bed, she changed into pajamas and climbed in next to him. Soon, he was putting his arm around her and taking off her clothes. “I basically said, ‘No, I don’t want to have sex with you.’ And then he said, ‘Okay, that’s fine’ and stopped,” [the woman] told me. “And then he started again a few minutes later, taking off my panties, taking off his boxers. I just kind of laid there and didn’t do anything — I had already said no. I was just tired and wanted to go to bed. I let him finish. I pulled my panties back on and went to sleep.

After one of my colleagues read the page proofs for the piece, he came into my office. “Did you find that first incident to be a little … ambiguous?” he asked tentatively. I told him I didn’t find it ambiguous at all; it didn’t meet my definition of rape. Another colleague overheard our conversation and joined us. She, too, said what happened to the woman didn’t sound like rape—“Or if it is,” she added, “I’ve been raped in every relationship I’ve ever been in.”

A few days later, that first colleague and I were discussing the piece with another staffer who is in her 20s. She was adamant that what the woman experienced was rape. “But I did worry, when I read it,” the younger staffer admitted, “that some people wouldn’t see it that way.”

Can rape really be in the eyes of the beholder? It appears it can.

Three years ago, I wrote an article for the magazine called “The New Rules of College Sex.” In it, I discussed a “Dear Colleague” letter of guidance the Department of Education had recently sent to all colleges in the country, laying out how they would be required to treat claims of sexual assault and harassment on their campuses in light of Title IX, the federal law prohibiting gender discrimination in education.

For the article, I interviewed a Malvern lawyer — a Villanova Law grad — named Brett Sokolow, who’s been a driving force behind Title IX claims against colleges. He’s built a lucrative business advising colleges on how to avoid such claims, filing claims against colleges, and representing both colleges and complainants in such cases, and he’s the founder of NCHERM, the National Center for Higher Education Risk Management. He’d been warning colleges for years that Title IX claims for sexual assault were coming: “The ‘Dear Colleague’ letter was one of the most important moments of my professional life,” he told me when I interviewed him. Sokolow was advising colleges to immediately expel any student found guilty of sexual assault under their judicial guidelines. He was asking for the creation of a national database of offenders. He told me women “should have the right to strip naked and run through the streets and be unmolested.” So he must be overjoyed with the way his vision has come to fruition, right?

Not exactly. The same day Simon’s story was published online, I received a copy of Sokolow’s weekly online newsletter. Under the heading “Tip of the Week,” he wrote:

Okay, so I’m all fired up again. In the last two weeks, I’ve worked on five cases all involving drunken hook-ups on college campuses. In each case, the male accused of sexual misconduct was found responsible. In each case, I thought the college got it completely wrong. … [S]ome boards and panels still can’t tell the difference between drunk sex and a policy violation. … Surely, every drunken hook-up is not a punishable offense. … ”

These are specially trained boards and panels, mind you — in lots of cases, trained by Sokolow at special (expensive) conferences and training sessions. And they still can’t get it right! Why is it so hard to decide what’s rape and what isn’t on college campuses? The answer may lie in something else Sokolow told me: that women have to be taught to understand when they’ve been sexually assaulted: “They have to learn to say, ‘This is something that was done to me, not something I did to somebody else.’” They have to be educated in their lack of agency — in their victimhood.

And colleges are teaching them, starting right from their first day of orientation. Here’s how Swarthmore lays it out in its student handbook:

Consent to engage in sexual activity must be knowing and voluntary; it must exist from the beginning to end of each instance of sexual activity and for each form of sexual contact. … Consent consists of an outward demonstration indicating that an individual has freely chosen to engage in sexual activity. Relying on non-verbal communication can lead to misunderstandings. Consent may not be inferred from silence, passivity, lack of resistance, or lack of an active response alone. A person who does not physically resist or verbally refuse sexual activity is not necessarily giving consent.

It’s understandable that schools want to institute rules to clarify when sexual activity is consensual and when it’s not on their campuses. The problem comes when you try to extend that rarefied vision to the outside world. When people who haven’t been treated to the extended hairsplitting of the Swarthmore code of conduct look at the issue of consent, it isn’t nearly so clear. I’ve been married to my husband for 31 years. In that time, I can’t say my “consenting” to sex with him has always been verbal or “enthusiastic” — another adjective sexual-assault activists like to throw in there. It’s unimaginable to me that two young partners in the throes of one of their earliest sexual experiences would “stop and clarify verbally the other’s willingness to continue before continuing such activity.” Maybe if that’s the way you’ve been taught, you do. But what makes a person guilty of sexual assault on a college campus rarely arises to what would amount to guilt in a court of law. And having two separate jurisdictions — and two separate definitions of rape — really gums up the works.

The women filing Title IX claims against their colleges say the administrators have ignored or brushed aside their complaints of sexual assault. There’s an instance in Simon’s piece where a woman

says a male student burst into her room while she was naked and refused to leave, after having harassed her via text message. According to her Title IX complaint, when she reported the incident, an administrator laughed and told her she might consider having him write “knock” on his hand as a reminder before he goes out.

You can read that as an example of an administrator being incredibly insensitive to a sexual assault. Or you can see it as a student overreacting to a minor trespass, with crossed signals between her and the administrator.

The comments section that follows Simon’s piece bristles with back-and-forth between people with such differing perspectives. “I don’t buy into the idea that run-of-the-mill college sexual experiences should be considered on the same level as rape,” one commenter declares, to be met with: “[I]t is not for you to decide what is a ‘real traumatic’ rape experience.” “The sexual encounter depicted here … sounds to me like trying to press charges against your roommate for eating your leftover pizza after you explicitly told them ‘no,’” someone charges. And the counter-charge: “I’d just like to know how far you can extend the victim blaming explanation before you realize how disgusting you are.” These aren’t two sides that are going to come to an understanding anytime soon.

And Sokolow knows it. There’s a certain air of desperation in the text of his tip this week: “We’ve written about this and talked about it forever,” he says plaintively, “but some boards and panels still can’t tell the difference between drunk sex and a policy violation. Perhaps the problem stems from weak policy, insufficient training or the futility of the panel model.”

Geez, you think? As Sokolow peers into the future, he sees the leviathan he unleashed growing ever larger and more uncontrollable: ‘[M]en are simply being punished for having sex, which is gender discrimination under Title IX, because their partners are having sex too and are not being subject to the code of conduct for doing so.”

That’s right: Even the prime architect of the Title IX college-sex debacle can’t see a way out of these woods.

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