Washington throws the book at 'campus rape culture'
But new university guidelines on sexual behaviour go well beyond the laws of the land
For people my age, the freedom to get drunk or high and then have sex with someone was a right guaranteed by the sexual revolution of the Sixties.
A great number of my friends (both genders) vigorously exercised that right, knowing it was not something our parents or their parents were especially free to do, particularly the women.
Heaven knows that much of the world, beginning with Islamic societies, still discourages or forbids such behaviour.
Oh, and also Yale University.
At Yale, in 2014, if you're inebriated and decide to indulge your lust, the act is considered non-consensual sex. Which is another term for rape.
It's punishable by expulsion.
Yale's written policy is explicit: A person who is incapacitated by alcohol or drugs cannot by definition consent to sex, and is therefore a rape victim if sex occurs.
If both parties are drunk, presumably, it would be up to Yale administrators to decide who was the rapist and who was the victim.
This may all sound beyond the realm of common sense, but it is real.
American universities are under serious pressure by federal authorities to do something about the "campus rape culture," as some call it – 55 U.S. colleges and universities are currently under investigation for failing to protect students from sexual harassment or assault.
Alarmed at the growing perception that they're becoming havens for rapists, the schools are coming out with codes of sexual behaviour that go far beyond criminal law.
Stained for life
The Obama government in fact insists upon that more stringent approach, telling educators in a special White House report to use a "more likely than not" test to decide whether sexual assault or harassment has occurred.
That is a much looser measure than the previous standard of "clear and convincing," and certainly far more likely to produce a guilty verdict than the "beyond a reasonable doubt" test applied in a criminal courtroom.
Therefore, if a college administrator thinks that you more likely than not violated a lengthy, highly detailed set of sexual rules, you're not just expelled, you may also be shamed in the media as a sexual predator and stained for life.
Further, the White House now recommends that schools should adjudicate cases without allowing any cross-examination of testimony.
Presumably, the government has decided that the need to avoid further traumatizing victims trumps an accused's right to question the accuser.
The intent behind all this is laudable. I say that as the father of a daughter who just graduated from university.
But what the universities are doing is also frightening, and I say that as the father of a son who is going into his senior year.
What constitutes consent?
Not only are universities all over America substituting their administrators for police and courts, they are attempting, with the best of intentions, to parse and regulate human behaviour down to the least gesture and syllable.
At Claremont McKenna College in California, the attempt to define sexual consent occupies two full pages of its sexual behavior code.
At this and other institutions, silence, or the absence of dissent in a sexual encounter, cannot be taken for consent. Consent cannot be passive.
Coercion nullifies consent, and coercion can be as simple as threatening to harm oneself if the other party does not engage in sex.
A drunken or stoned person cannot consent (although, unlike Yale, Claremont McKenna confusingly adds that "being under the influence of alcohol or drugs does not in and of itself constitute incapacitation").
Consent is a difficult thing to define, Claremont McKenna's dean of students, Mary Spellman told National Public Radio: "If consent were easy to put into words, we'd have a sentence," not two pages.
What's more, definitions vary depending on the university. Yale goes a step further than most, even providing helpful scenarios:
If, for example, two Yalies decide to find a room, and Morgan, after checking for Kai's consent, performs oral sex on him, and then Kai tries to reciprocate without seeking Morgan's permission, he would merit an official reprimand.
Again, the schools are following Washington's cue. The federal government's guidance on consent is to go beyond the old standard of "no means no."
Washington now wants something called "affirmative consent," meaning that no certainly means no, but yes doesn't necessarily mean yes, unless it is uttered clearly and soberly and repeatedly and convincingly, and one's body language agrees.
Alas, this is not a public debate that encourages critical writing.
After a White House task force declared in April that one in five women on campus has been sexually assaulted, and that only 12 per cent of sexual assaults on campus are reported, Dr. Mark Perry, an economics prof at the University of Michigan, ridiculed Washington's math by using actual sexual assault figures from three schools.
Conservative commentator George Will, a sober analyst if there ever was one, then cited Perry's critique in a column, suggesting that colleges, with their extra-legal sexual conduct rules, and their "trigger warnings" about offensive languages in textbooks, and their campus speech codes, are treating students like fragile hothouse flowers, rather than preparing them for the world.
Four U.S. senators promptly blasted Will as an antique who trivializes and legitimizes sexual assault, perpetuating myths created by victimizers.
There was similar blowback last year, when journalist Emily Yoffe had the temerity to suggest that while sexual assault must be punished young women might also want to avoid getting blind drunk.
Yoffe quoted Anne Coughlin, a professor at the University of Virginia and an expert on feminist jurisprudence, as saying more or less the same thing.
Those who believe there is a rape culture on American campuses have called that "blaming the victim."
But every parent should certainly consider this: If the complications of human sexuality and its often ambiguous mating dance defy consistent definition by the intellectual candlepower of entire university faculties, what advice should you give children who might still be in their teens as they head off to college?
This would be mine if my son or daughter were ever to ask: If you feel the need for a sexual adventure, seek it off campus, where police have expert investigators and courts guarantee your rights. Due process, in other words.
And avoid sex with fellow students, period. It's just too risky nowadays.
- An earlier version of this column mischaracterized the views of Anne Coughlin, a professor of law and feminist jurisprudence at University of Virginia, and was changed to more clearly reflect her viewsJun 19, 2014 10:06 AM ET