A Slippery Definition of Rape Is Likely at Top Schools

June 24, 2014

By KC Johnson at Minding the Campus

recently looked at the inconsistent and in some cases outright arbitrary ways the nation’s leading universities are defining one form of campus sexual assault—rape that occurs because the accuser cannot consent. The piece made three points: (1) a substantial minority of schools have a definition of sexual assault that technically applies to many instances of intercourse in which the parties have been drinking but are in no way incapacitated; (2) because holding disciplinary charges along these terms would lead to hundreds of sexual assault cases annually, the standards are applied only in an arbitrary manner, with no way that the accused student (such as Lewis McLeod at Duke or Peter Yu at Vassar) could reasonably have known that he would be branded a rapist by his school; and (3) because of pressure from “activists” and to some extent the federal government, it’s likely that in a few years a strong majority of the U.S. News & World Report top schools will define sexual assault in this confusing manner.

Two recent examples—one in the realm of policy, the other in practice—illustrate this aspect of the broader problems of campus due process. In the realm of policy, consider news from the University of North Carolina. One of the first schools to be subjected to an anti-due process campaign, UNC is currently rewriting elements of its sexual assault policy. The Daily Tar Heel reports that the committee formulating the new policy struggled with the issue of how to establish the intoxication level necessary for a rape to have occurred.

One UNC administrator confessed, “It feels to me that we are trying to catch a greased pig (defining consent when intoxicated), because it comes down to the intent of an individual.” Another administrator said, “I fear that if we try to come up with a perfectly drawn line (for consent before incapacitation), we are going to be here for 20 more years.”

So what did the committee do? Approve the new policy—by voice vote.

Expect both of these quotes to appear in court filings a year or two down the road, as a student who UNC had branded a rapist on grounds of sex-while-intoxicated files a lawsuit against the school. If senior administrators can’t define the standard at when intoxication automatically produces a rape, it’s hard to imagine how the university could nonetheless be comfortable with students facing disciplinary charges under the policy.

The other recent example comes from Occidental, which belatedly tried (and failed) to suppress internal details related to the college’s determining that one student raped another. (The college sought to have the case file sealed and to pressure FIRE to remove documents about the case from the FIRE website.) Among the items that Occidental hoped to conceal: one of the faculty leaders of the anti-due process movement on campus, Professor Danielle Dirks, reportedly urging the accuser to file charges on the grounds that the male student “fit the profile of other rapists on campus in that he had a high GPA in high school, was his class valedictorian, was on [a sports] team, and was ‘from a good family.’”

Even without Dirks’ prejudice, Occidental’s policy already was a mess—it’s one of the few schools to go beyond the “affirmative consent” standard (even if the accuser says “yes,” in some instances the accused student can be branded a rapist). The accused student can’t have an attorney in the procedure, can’t have access to any material compiled by the college until 48 hours before the hearing, and might have to cross-examine his accuser without being able to look at her.

Anti-due process faculty agree things are unfair at Occidental—but in the reverse direction. Lashing out against the lawsuits filed by “John Doe” and others, Occidental professor Caroline Heldman asserted, ”These lawsuits are an incredible display of entitlement, the same entitlement that drove them to rape. These are students who were found responsible after an extensive adjudication proceeding that is heavily biased in favor of alleged perpetrators. We don’t have a problem with false rape reporting, we have a problem . . . with adjudications that favor perpetrators when they are reported.”

Keep Professor Heldman’s analysis in mind when hearing complaints about how campus disciplinary systems are too favorable to the accused student.