Title IX regulations for sexual misconduct and the huge mess they’ve created in American universities

June 6, 2018 • 11:30 am

In September of last year, I wrote a piece about the Obama-era changes in the Title IX laws. Rather than re-describe the situation, I’ll quote from that post:

In 2011, the Office for Civil Rights (“OCR”) of the U.S. Department of Education sent its famous “Dear Colleague” letter to American colleges and universities, suggesting how sexual harassment and assault cases should be handled. Before that, it was pretty much up to the colleges how to handle such in-house investigations, and different colleges used different standards of evidence.  There are three that could be used (see here for more explanation):

  • Conviction requires guilt “beyond a reasonable doubt”, which of course means that the bar is very high for conviction.
  • Conviction requires “clear and convincing evidence”, that is, it must be “highly probable or reasonably certain” that harassment or assault occurred. This is conventionally interpreted to mean a likelihood of 75% or higher that the assault took place.
  • Conviction requires a “preponderance of the evidence” for assault or hasassment. This means that it is more likely that not (likelihood > 50 %) that the offense occurred.

Criminal courts in the U.S. use the first standard for conviction. The “clear and convincing” standard is used in some administrative court determinations and certain civil or criminal cases (a prisoner seeking habeas corpus relief from capital punishment, for instance, must prove his innocence using this standard). The “preponderance” standard is used in civil and family courts; it is, for instance, the reason why O. J. Simpson was found guilty of by a civil court for damages in the murder of Nicole Brown Simpson and Ron Goldman, thus owing them lots of money even though he was exonerated in his criminal trial.

I then took a poll among readers (you needn’t remind me that this is not a random sample or a “scientific” survey) to see how they felt about how colleges could handle sexual harassment and assault cases. Here are the results:

About 80% of readers thought—and I agree—that these behaviors—which are crimes, should be adjudicated by the courts rather than by the schools themselves. Indeed, universities have made a complete botch of it, not allowing students to hear the charges against them, confront their accusers, have legal representation, and so on.

If you want to see the draconian, Star-Chamber nature of how colleges screw up the process (often knowing exactly what they’re doing: trying to convict a male using a paucity of evidence) read Laura Kipnis’s book from last year, Unwanted Advances: Sexual Paranoia Comes to Campus. Kipnis, a feminist professor of communications at Northwestern University here in Chicago, reports the doings of two Title IX investigations at her university. You’ll  be horrified to learn how shoddy these “investigations” can be, how motivated they are by animus or personal beefs rather than a desire for justice, and how people’s lives have been ruined through tissue-thin allegations. Indeed, just by writing the book, Kipnis herself was subject to a Title IX investigation and a lawsuit from a student who (unnamed) had made Title IX allegations against a man in Kipnis’s narrative.

The problems go deeper than just the shoddy standards of evidence and incompetent proceedings. There is often a presumption that a male student is always guilty simply by virtue of being a male, as men are presumed to be the sexual aggressors.  Further, if a student is incapacitated or has lost inhibitions from alcohol, that student is often judged to have given up “affirmative consent”, and so can accuse her sexual partner of having committed rape.

This makes me shudder, for virtually everyone my age has had one or more sexual encounters when both partners were inebriated, and I don’t remember any of these that were followed by accusations of malfeasance. But now things have changed, and if both sex partners are drunk or tipsy, what happens? Can there be mutual rape?

In fact, as described in a new article in The Atlantic, “Mutually nonconsensual sex,” Caitlin Flanagan answers “yes,” but shows what happens: mutually drunken (and therefore mutually “nonconsensual”) sex can lead to a race in which both participants in a drunken hookup suddenly realize that their partner might file a Title IX rape complaint, and so they try to be first to inform the authorities that they were raped. The first complainant, apparently, wins. Something like this happened at the University of Cincinnati in Ohio, and the first responder was the man, so the woman was suspended from college until her male partner graduated—a common judgment in these cases. But she’s suing, and she has a pretty good case. As Flanagan notes:

It is Jane Roe’s [JAC: the pseudonym of the woman student] good fortune to have as her attorney Josh Engel, whose practice is largely centered on suing universities—including, on five occasions, the University of Cincinnati—on behalf of plaintiffs who faced discipline for sexual misconduct by campus disciplinary proceedings—all of whom, until now have been men. In the lawsuit, he cites a recent and underreported ruling from the Sixth Circuit, which has significant relevance to the large number of campus sexual-assault proceedings involving two drunk students. Doe vs. Miami University found that a school acts in a discriminatory manner when it finds that both a male and a female student are intoxicated and engage in sexual activity yet chooses only to discipline one of the students. As Engel told me, “From a constitutional standpoint a public school violates the equal-protection rights of their students when there is no rational basis to differentiate between male and female students. The court found that even if only one student makes a report, if the school possesses knowledge that both were intoxicated, “the school has an affirmative obligation to investigate both students for misconduct without waiting for a ‘report,’” Engel said.

In other words—college students and administrators take note—the days of blaming one person (almost always the man) for a no-harm, no foul, mutually drunken hook up may be coming to an end. It was a ridiculous standard, one that that infantilized college women, demonized male sexuality, and was responsible for harsh punishment meted out to an unknown number of college students, almost all of them male. It trivialized something grave: sex crime. And because it poured all of these experiences through an interpretive system that forced women into the role of passive victims and men in that of aggressive predators, it has helped stoke understandable resentment among young men on campuses across the country.

Flanagan concludes that it’s time for colleges to stop micromanaging the sex lives of their students. Yes, I think they can give them “education” about what’s permissible and legal, and what is not, but these Star Chambers are a recipe for lawsuits, and colleges will eventually realize it. In fact, one of the very few good things that happened under the Trump administration might be Betsy DeVos’s rolling back of the “Dear Colleague” standards of the Obama administration, and the publication by the Civil Rights Office of the Department of Education of recommendations for dealing with accusations of sexual misconduct (see them here). The standards seem quite reasonable.

A climate in which men are deemed guilty from the outset by having a Y chromosome, in which a 50.1% judgement that an assault was likely leads to ruining someone’s life (and face it—that standard is basically a judgment call), and in which when both partners are intoxicated the male must be the rapist, is a climate that begs for lawsuits. This new one is not the first: there are several others—including the case of Emma Sulkowicz (“Mattress Girl”) at Columbia—in which the new rush to judgment has led to injustices.

I think that if someone has committed a real crime on campus, and that includes sexual harassment and sexual assault, it should be left to the legal system rather than to colleges for disposition. If there is a conviction, then the colleges should act.  Colleges simply aren’t equipped to dispense justice, and they may have ideological agendas not held by juries and judges.

Obama’s revision of Title IX was a mistake, and we’re beginning to see the consequences. But even given that, colleges aren’t required to abide by the newer standards, and I suspect most of them will retain the “preponderance of evidence” mistake promulgated by Obama’s administration. But Lord only knows how they’ll deal with the common cases of two inebriated students having sex.

I close with Flanagan’s conclusion:

Now, in many regards, universities monitor the sexuality of their students more intrusively than in the 1950s. There are fulltime employees of American universities whose job is to sit young people down and interrogate them about when and where and how they touched another person sexually, and how it felt, and what signs and sounds and words and gestures made them believe that consent had been granted. This was how homosexuals used to be thrown out of schools and sports teams and the military; this is how young women were punished for acting on their sexual impulses by a wide variety of American institutions in the past. This is beyond the overreach of the modern university; this is an affront to the most essential and irreducible of all of the American ideas: the freedom of the individual.

. . . That time [JAC: she’s referring to the Berkeley Free Speech movement and Mario Savio’s call to fix the broken system] is coming again on American campuses, as the strongest and smartest and bravest among the students are beginning to realize that the beliefs and practices that dominate these places are irrational and hugely political. These new students are waking up, resisting, fighting back, in all sorts of areas of college life. The administrators want to crush them, but the wind is at their back. The progressive left has all the power on campus, but this unfolding awareness on the part of these counter-revolutionaries has its own unassailable power: truth, logic, and reason.

115 thoughts on “Title IX regulations for sexual misconduct and the huge mess they’ve created in American universities

  1. Why did universities feel compelled to insert themselves into the private lives of students in the first place? I think of education as a service, not prison or a daycare.

    Was it activist student demand? Legal pressure? Obama?

    1. Well, there are guidelines for student conduct that doesn’t rise to the status of criminality. And some of that should be monitored or punished. It’s just that serious crimes like these should be taken to the police and the courts.

    2. All of the above?

      A few weeks ago we were celebrating the 50th anniversary of Paris 1968, which I guess falls under “activist student demand”. And over literally the same issue: for the university to stop barring men from the women’s residences.

      The surreal thing about our times is that both of these are regarded as pet causes of the same movement. 180 degrees from “left” is apparently still “left”.

      1. It’s so weird. Back then (at least from what my parents and others have told me, as I wasn’t yet born) it was all about freedom: freedom to choose, freedom to love, freedom to do what you wanted with your body and make sometimes regrettable decisions. Now, it’s all about restrictions, because nobody should ever regret anything and anything that results in negative emotions (like regret) is “unsafe.”

    3. Time was, colleges and universities stood in the place of students’ parents (“in loco parentis,” being the operative Latin legal term). The generation that came of age in the Sixties fought tooth-and-nail against this doctrine, on the basis that students were of legal age to be liable for themselves (which included, in those days, the possibility of being drafted and sent off to die a foreign war). By the 1970s this battle to extirpate in loco parentis had by-and-large been won.

      Then along came a later generation, driven by concerns of over campus sexual assault — some of them legitimate, others overblown and ideologically motivated — and nurtured in the age of helicopter parenting, and these students once again have sought the protective parental mantle from university administrators.

    4. The Department of Education under President Obama essentially said that if colleges didn’t set up these processes, they would be violating Title IX and lose federal funding. It’s unfortunate, but true.

    5. 1) obama and the Dems engaged in considerable demagoguery, echoing the false feminist narrative of a campus sexual assault epidemic. This was the consequence of converting demagoguery into policy by a regressive leftist Nanny State;

      2)Universities have become surrogate helicopter parents for a generation of infantilized students. (cf. Haidt on the bizarre blend of honor culture with dignity culture.)

  2. “The progressive left has all the power on campus, but this unfolding awareness on the part of these counter-revolutionaries has its own unassailable power: truth, logic, and reason.”

    Maybe so, but the only power that ultimately will matter is money. The Regressives in Academia will not give an inch to truth, logic or reason until lawsuits take enough money from them.

  3. In modern society the innocent are guilty unless proved otherwise. And it may very well be simpler to ban sex entirely. If procreation were all carried out in test tubes and we all took bromide the niceties and requirements of political correctness could be honoured in all its glory.

      1. Well administration would notice the lack of students as no student-loan cash would be pouring into the corporate coffers. OTOH I doubt they’d notice the lack of faculty who can easily be replaced by more administrators with their degrees in “education”. Noting that Southern Illinois U recently advertised for qualified (post-grads & PhDs) volunteer faculty to sign up for three year unpaid stints as adjuncts. And you were wondering how you could ever poosibly use that PhD in underwater basket weaving…

  4. Are there “pseudolegal” proceedings in any other contexts?

    I was thinking about (say) computer crime – would a school discipline a student for “hacking” a grade system and then charge them?

    1. I’m looking forward to seeing what we do if and when one of our Cyber Security students hacks in to the exam database to give themselves 100%.

      1. If he’s a smart hacker he’ll give several other students (preferably the less able) 100% and hinself a mere 97%.

  5. This entire business is just wrong. Sexual Harassment should not be grouped with sexual assault and rape. Why the people in the Obama Administration would have done this in 2011 is kind of nuts. Within this same government is the EEOC and title VII, civil rights act that explains sexual harassment. The Colleges know very little and the EEOC can teach much on this subject. For the investigation of sexual assault & rape, this is for the Police.

      1. Generally no. Let’s say as example, you have some sexual harassment reported to you as the boss of the firm. Sarah says Bob is harassing her on the job. Bob is a fellow working or maybe her supervisor. Try getting the police to investigate it, they don’t have time for this. Unless the person is physically grabbing or maybe exposing himself there is nothing criminal to report. Harassment is suggestive sex, asking the person constantly to go out or suggesting if they want to get ahead they need to put out. These are just examples and they are not criminal. It is kind of like reporting to the police that you think your neighbor is going to kill you. Good luck with that one.

        1. I’m not familiar with the law on sexual harassment in the US but the fact that the police do not investigate is not authoritative on the question of whether some action is a crime or not.

          Furthermore, Jerry said sexual harassment can be a crime. His statement and your statement that it generally is not a crime are compatible.

    1. “Why the people in the Obama Administration would have done this in 2011 is kind of nuts.”

      This is why; “Pander… 3) v. catering to special interests without any principles, such as a politician who says to whatever group he/she is addressing just what they want to hear to win their support, contributions, or favors. (See: prostitute)”

  6. Here is another thing to think about. If you need another math instructor in the department would you hire some person from the shop department for that job. Probably not. Investigating properly, sexual harassment in the work place is the same. You do not get the guy cutting the lawn to do that investigation.

    1. That’s part of what led me to respond ‘leave it to the police’ on the poll. When you start looking at developing an administration to handle judicial issues, you really have to ask, why would I do that rather than using the already constituted authorities. A college is not a township.

      1. Certainly and something like sexual harassment that can be handled in the work force must also be accomplished by trained professionals. This idea that if I am accused it’s all over for me on sexual harassment is not the case when it is handled by trained investigators. As I have mentioned previously, I worked for a company that installed and operated this system and it still operates today. Sexual harassment is not totally eliminated but nearly so. I believe schools could do the same thing. They might be better to group it together such as the big ten or by some other united effort. You have a specific department or group that has been fully trained as investigators. You also have a specific and safe department to report sexual harassment. All teachers, administrators, employees must be trained/instructed to turn in any report within two hours of getting a report. That is your only specific responsibility. You do not investigate, you do not say anything to anyone, you just report it to the specific office or person. This is not kids stuff, it is serious business and has strict regulations to operate in.

        1. Yes , I think that might work well for sexual harassment, but as soon as it gets to sexual assault and rape, it should become a police business.

      2. On some campuses, the security are in fact police. CMU is like that, and last I checked UBC was as well. Both of these started as campuses in the middle of nowhere.

        (UBC is extra interesting that way because they are RCMP because of the mandate of RCMP to be the police for non-places.)

  7. “Further, if a student is incapacitated or has lost inhibitions from alcohol, that student is often judged to have given up “affirmative consent”, and so can accuse her sexual partner of having committed rape…

    …But now things have changed, and if both sex partners are drunk or tipsy, what happens? Can there be mutual rape?”

    I was talking about exactly this topic with a colleague/friend.

    Going by this standard of determining affirmative consent, I was raped a LOT while at university and loved every moment of it.

    1. Big distinction, I think, between “lost inhibitions” and incapacitation. Sex sans inhibition can be salubrious and fun. Sex with the incapacitated is gross and illegal.

      1. I feel exactly the same way as you state above.

        However, there are some SJW’s/Feminists that say that a woman over the DUI limit cannot give informed consent.

        1. Well, they do have a point. Being intoxicated reduces many of our abilities to make sound judgements (that’s part of the “fun” of drinking). Of course, it’s a two way street.

          One thing that is often lost, however, is that of responsibility. For example, a drunk driver has diminished capacity to operate their vehicle safely but (rightfully) bears responsibility for their actions. But is it sole responsibility.

          A drunk co-ed has diminished capacity to give informed consent, but some wish to absolve them of all responsibility for their acts.

          The two case are not the same because in the later, there is another actor involved who also has responsibilities, drunk or not. I only compare them to suggest that while one actor is often made to bear responsibility, the other is not and therein lies some of the problem.

          1. I’m not sure where to draw the line, but the legal limit for driving ain’t it. Hell, people over the legal limit give valid, binding consent to take a breathalyzer test all the time.

        2. I think this is a genuinely difficult issue. I can see merit in the point of view that a person over the DUI limit can’t give informed consent. There are unsavory people that prey on drunks, for one. And it seems entirely plausible to me that there is some range of drunkenness between pleasantly drunk and rendered unconscious that without doubt qualifies as too impaired to give informed consent. The hard part is determining where that line should be in a way that can actually be implemented in real life and that is as fair as possible.

          I also see problems with that point of view. For one example, if the person who was drunk doesn’t feel they where raped or even mistreated and there is no obvious ill intent on the other parties part, it doesn’t make much sense to me to charge anyone with a crime.

          In cases where both parties are drunk? If both are impaired per relevant legal standards then it makes no sense to charge anyone with a crime.

          1. Most of us who drank to excess in high school and/or college ended up having sexual encounters (and other situations) we regret. I know I did, and I don’t know a man (and nearly every woman I’ve talked to about this subject) who used to drink who doesn’t have at least one such regrettable experience. But, as far as I know, none of us have ever thought to blame the person who had sex with us. We chose to drink, we chose to do it in a setting where we knew this was a possible scenario, and we chose to have sex while drunk (even if we wouldn’t have made that same choice sober). Hell, usually we were drinking in this kind of scenario so we would loosen up and be more charming, so that we would have a better chance at hooking up! The entire series of events was created through our own choices, and I can’t imagine trying to say that it was someone else’s responsibility to step in at any moment and force me to stop what I was doing because they thought I might regret it later. Keep in mind that another person has no idea whether I actually would regret a given decision. We’re asking people to not just remove the agency of others, but to judge whether or not the other people will regret the choice they wish to make in the first place. What if they want to do it and will still be upset the next day that they missed out on a chance to have a pleasurable experience?

            As you said, all of this is way too complicated anyway. Most of us (including you, I’m sure) don’t want people having their lives ruined and/or going to prison because college administrators and courts decided on an arbitrary threshold past which decisions made by an inebriated person become the responsibility of others.

            1. Well said, BJ!

              Waking up next morning with a case of the guilts or “my god, did I go to bed with *that*? He (/she) looks like a dog!” is absolutely NOT any grounds for ruining the other person’s life.

              And, by the way, the legal limit for DUI is way too low to be appropriate for judging someone’s competence to give consent. It’s allegedly the point at which ones reactions are slowed, not the point at which one becomes incapable of rational judgement.


            2. And, by the way, I’ve had a couple of… unsatisfactory experiences when, had I been stone cold sober (or had it been less of a long time since I last got any) I might have turned it down. But on the other hand, most of the occasions I remember with a warm fuzzy glow also involved drinking, on both sides. I would find it ludicrous to have, metaphorically, the cops busting down the door and yelling “Stop! You can’t do that!”


              1. And then, of course, there are the times that drunken encounters lead to relationships. In college, there was this girl who knew I liked her, and I knew she liked me, but it was our freshmen year, we were both a bit shy, and neither of us had the courage to tell the other. Finally, we both ended up getting drunk at a party, we hooked up, and we then had a relationship for nearly a year. It was a great year! And it might never have happened today.

            3. @BJ I didn’t have sex until Junior year of college at the age of 20. All of my friends had sex in high school at 16 or 17. I was the “good” friend who took them to buy pregnancy tests etc. I married the first man I had sex with because I thought you were supposed to. But when I was 14, don’t read if you are a Jewish mom, I hooked up with the Bar Mitzvah boy on his Bar Mitzvah. He was going into 8th and just moved from California. He’d never seen snow before. He had two friends there who were from CA and my two friends. They were all one year younger. He asked me if he could go down on me and I said yes. Of course! He was the Bar Mitzvah boy. I didn’t come. And didn’t do anything like that again until I was 20. When my friend’s mom came to pick us up, my other friend realized we forgot our sneakers and our bras so I ran back inside to get them. One of the California moms was just there, as I was still smiling ear to ear, picking up our bras and sneakers. I have the story about why I’ve always thought I was Jewish and it’s how I was named but my parents never told me until a year ago. It doesn’t matter anyway. I feel Jewish. Anyway, that was the best Bar Mitzvah I’ve ever been to. So much fun.

              1. I can’t tell you what a great story that was! My Bar Mitzvah was the first time I ever drank, but I didn’t come close to having an experience like that. In fact, that Bar Mitzvah boy had some serious confidence! I was almost too shy to ask a girl if she would go out with me back then. I’m jealous of you both.

              2. @BJ Yes. I believe the confidence was because he was from California. The Bar and Bat Mitzvahs from my 7th grade year were very fun but also very innocent in terms of that. It seemed like we were all prepubescent even though we were probably in the middle of puberty. This one was a year or so later and I was going into 9th grade. This young man and his friends looked like they could be in high school and were smoking pot with their dads earlier in the evening. They just seemed much older with possible facial hair etc. It was just this one moment right before I even knew to be concerned about anything related to sex really and right before I developed an irrational fear that I would be raped because men were stronger than I was. I felt lucky that night.

            4. BJ,

              I think I agree with all that you’ve said here. For example, I think a person who regrets having had consensual sex while drunk and so goes to the police and files rape charges is not just guilty of doing something really shitty but something that itself should be illegal. Heck, I once woke up in a stranger’s bed and had only a vague recollection of meeting her the night before. Lucky for me neither one of us seemed to regret it. But I don’t think you’ve covered nearly all of the possibilities.

              All of the situations you mentioned are ones in which you assume that both parties know what they are doing well enough to be held accountable for their choices and that people will generally behave decently in sexually charged situations. That’s not always the case. I certainly don’t agree with the extreme SJW/Feminist point of view on this issue but, as with many extreme positions, there are some legitimate problems that helped fuel the extremism. For example, conservatively I’d say that at least half of the adult females I’ve known and have talked about this kind of thing with, have been victims of date rape or worse. Almost always involving drinking and socializing. It isn’t just them having regrets the next morning. Which I agree definitely should not be considered rape or anything remotely like it.

              1. My conception of date rape is when a person goes on a date with someone else and at some point one person starts sexual activity beyond the point the other person wants to go, they say stop, are ignored and physically forced to endure sexual activity.

              2. But anyway, of course date rape falls under rape. I’m only discussing the situations that I laid out in my post, which I think is what everyone is talking about here: drunken/inebriated sex, which is something many people now think should be punished.

              3. The only difference we may have is that I think there is a point at which a person is so debilitated by alcohol consumption that having sex with them should be illegal. I also was trying to clarify that I don’t know how to define that line. I like some of things Ken has said about this issue. For example, I don’t think DUI limits are a reasonable place to draw the line. But there does come a point of drunkenness where a person is “incapable of forming the requisite mental state to consent,” and I think that is a reasonable place to draw the line. The problem is doing that in real life. That’s difficult. How do reliably ascertain whether or not a person was in that state?

              4. Darelle, that is not difficult, but virtually impossibl, to a large degree at least. If somebody passes out and another drunk has sex with (generally) her (but could be a him, a male that passes out is not able to have an erection, I’d say, but can xtll be ‘sodomised’), I’d consider that rape.
                However I fully agree that having ‘consensual’ (hyphenated since alcohol can cloud judgement) sex while both parties are drunk and not passed out should not be considered rape.

              5. “… a male that passes out is not able to have an erection …”

                Tell that to morning Woody. 🙂

      2. Of course there’s a big, difference, but the new way of thinking among those who run these kangaroo courts and draw up guidelines is that being inebriated in any way voids any “consent.”

        I don’t see why this should be any different from drunk driving. If a person decides to get drunk and drive, we don’t let them off the hook because they chose to get drunk and then couldn’t make sober decisions after doing so. For some reason, this suddenly changes when it comes to drunken, regrettable sex. It becomes other people’s responsibility to ensure that the drunk person does not make their own decisions.

        So long as you have agency and are making conscious decisions (which you do when you’re drunk, high, etc.), and assuming you chose to become inebriated in the first place, your decisions should be your own responsibility.

        1. I see this difference: people who pass out behind the wheel are liable for drunk driving. People who enter such an unconscious state due to inebriation (or who enter the crepuscular period that generally precedes it) are incapable of consenting to sex, and anyone who performs a sex act upon them while they’re in such a state is guilty of rape.

          Other than that, I’m in general agreement with your analysis.

          1. Oops, I virtually doubled your post before I’d seen it, sorry. ( and you formulated it better too).

  8. Suspending the student who reports first in these “mutually nonconsensual sex” situations is more ridiculous than having both people attend a training course about sex, what it means, why people do it, how to pleasure each other, snuggling, hugging, friendship, the differences between things like sex, marriage, a wedding, a diamond, a legal document, companionship, and mutual respect for each other. It is less ridiculous for the disciplinary action to have them “hook up” again in a sober setting to explore each other in light of the new things they have learned.

    1. ‘mutually nonconsensual’ is surely an oxymoron. It only makes sense if one twists the normal meaning of ‘consent’ to arbitrarily exclude being influenced by drink. After all, if neither party consented, nothing would have happened.

      This is very, very different from cases where one party actually objects (which is assault/rape).

      It’s utterly ludicrous in such a case to subject both parties to a humiliating and intimidating disciplinary process. If they both enjoyed it there is absolutely nothing to object to, and if they didn’t enjoy it surely that is its own deterrent.


      1. I understand that the “disciplinary process” here is ridiculous.

        I wasn’t trying to make the point of having education about this maybe as an option but since it was ridiculous anyway, why not throw it out there? Some education should be available.

      2. And if you put me in charge (I do have an Ed.M) it would be mandatory snuggles (in practice) and a light spanking (for discipline) for those who didn’t show up on time. A bare bottom spanking if I get to enforce these rules. It’s appropriate and effective.

  9. If you need a toilet fixed you don’t go to the math department, you get a plumber. You don’t call the sociology department when you need a cab at 4am and you don’t visit the IT department when you have a nasty rash. Specialisation is what distinguishes a civilisation from a mere group of people.

    1. “You don’t call the sociology department when you need a cab at 4am …”

      Unless you’re in one of those student ghettos (Madison, WI, comes to mind) where the cab drivers all tend to have PhDs (particularly in the arts and social sciences). 🙂

  10. I have to say I’ve been confused by some of the rhetoric surrounding drunk sex. I’ve been pretty drunk a few times in my life and it has predictable effects: my balance and coordination are impaired, I feel mentally a bit fuzzy and eventually sleepy. Maybe it lowers my inhibitions. But it has never made me do something I wouldn’t normally want to do. It never prevents me from refusing something I don’t want. From that perspective, the idea that drunk sex is rape is just bizarre to me. I can imagine critically reevaluating some decision in the sober light of day, but not feeling violated for making that decision. It makes me wonder if other people have had vastly different experiences with alcohol.

    Note, I’m not talking about cases where a sleeping person was molested, that is clearly an issue of non-consent. There are also the cases of blackout drunks, where people don’t remember what they did during a binge. But as far as I’m aware those don’t involve qualitatively different behavior while drunk.

    1. My experience with alcohol has been the same. I think the only way it makes sense, if at all, is that people have competing desires, such as the desire to have sex with somebody and the desire not to cheat on their partners. Normally the desire not to cheat may win out, but add alcohol and the balance can change.

      They’re still doing something they want, but you could argue that others can take advantage of that drunken state to, for instance, sleep with them when normally they’d refuse. But that’s not rape and ultimately a drunk person is (or should be) responsible for what they do while drunk, even if they regret it later.

    2. Wanting to do something is not the same as actually doing it. You may be strongly emotionally and sexually attracted to your married professor who has a reputation for casual affairs, but sober that person cannot persuade you into bed. They try. You tell them no, and why not.

      So they are aware of your attraction to them, but know you don’t want to take it further because of the teacher/student relationship, the marriage, and the awareness it means nothing emotionally.

      Then you get drunk. In that state the professor takes advantage. They know they can persuade into bed you when your judgment is compromised. That’s sexual abuse in my book.

      Some people could still say no in that situation, and maybe you’re one of them. A lot of people couldn’t because of the effects of alcohol.

      1. Not only is there diminished capacity to make good judgment when drunk, there is also a power differential that imposes a greater degree of responsibility and obligation on the professor (in your example) than on the student. This is something I am not sure W.J.Clinton ever really understood.

        1. You are right about that and when it ends up in the bed in Heather’s example it can become a legal thing to determine. Both being adults I am not sure there is a case. Likely though, the teacher would be waving bye bye. With something like Weinstein it was standard policy, you want the part you must perform. And even rape you if you do not perform. Look at the MO of Cosby and still how hard it was to get him.

      2. Here’s the thing: if you convince someone to do something you know they will severely regret later, you are being a jerk. If you intentionally exploit their drunken judgment to do this convincing, you are being the exact same kind of jerk, drink is just facilitating it. E.g., if I convince a gambler to make a bad bet and he loses a huge sum of money, I might be predatory. If he does this while drunk, it might be easier for me (the bookie), but ethically the stakes are the same: his loss, my gain. It’s not like I should feel good about exploiting his bad judgment if it wasn’t due to alcohol.

        This is analogous to the hypothetical you describe, but I don’t think most cases are like that. I.e., most people who want to get drunk and hook up aren’t doing it as part of a sinister plan to undermine their target’s better judgment. Most are just looking to hook up and think their partner is equally into it (which, while drunk, they might be.) Then it becomes a question of how much one person is expected to second-guess another. I’m all for being a decent person here; if, say, you notice the other person has a wedding band, it might make sense to say “I’m not doing this because I don’t want to be part of something that might turn out bad, and I don’t trust your judgment now”. But that is choosing to participate or not, the other party has their own responsibility. Along those lines, I also wouldn’t call the situation you described “sexual abuse”. I call it being selfish, but abuse has more specific and severe meanings.

        1. Those who can’t recognize the power dynamic in the situation I described as sexual abuse need to learn more about such situations.

          1. Gee, thanks. Clearly the only reason we have a difference of opinion is because I lack education. It’s a good thing that saves you from addressing anything I said.

            1. I’m sorry you think that’s what I was doing,

              I follow up comments via WordPress, so I’m rarely even aware of who is in another part of the thread, and often don’t remember what I wrote, let alone anyone else. I’m only aware of the person directly above. I address issues not people.

        2. I agree up to a point. If you are convincing somebody while drunk, but would not consider it an option if you would have been sober. We are talking of people that both had too much to drink, aren’t we?
          Heathers example adds a whole new dimension, btw, using one’s position versus the ‘victim’, quite certainly unethical, but really criminal? I sincerely don’t really know.

      3. In your hypothetical, Heather, the predatory professor is an abominable cad. But I don’t think he’s a rapist. For there to be a lack of consent due to intoxication, I think the non-consenting party needs to be intoxicated to the point where she or he is incapable of forming the requisite mental state to consent.

        1. I didn’t say rapist, I said sexual abuse. I thought about what term to use, and I deliberately didn’t use the term rapist because I don’t think he would be a rapist either. However, you would find anyone further to the left than me, and I’m pretty moderate, would consider this rape.

          1. I didn’t mean to suggest you were calling it rape, Heather; the term you used, “sexual abuse,” is ambiguous, at least here in the States, and I was merely trying to set out my own interpretation of the situation.

            To clarify further, I don’t think what the professor did is (or should be) a crime — again, under US law. Whether it might give rise to some type of disciplinary action or civil liability, I’m not prepared to say — especially since some of my colleagues on the civil side of the bar can be so creative in establishing novel civil causes of action.

              1. I’ma hafta read that one mañana, BJ. Poring over proposed bar rules is a bit too soporific for this hour of the evening. 🙂

      4. You just shifted the goalposts. You’re talking about systematic abuse of power, not a couple of drunk students having it off.


        1. Yeah I am. But I wanted to point out there were plenty of situations where someone might do something when they’re drunk that they wouldn’t do when they’re sober. To be fair, I’m someone who still can’t be persuaded when I’m drunk, just like I suspect the person I started this debate with is. I also don’t think being drunk is an excuse for bad behaviour. But alcohol impairs judgment, and something like sex (or gambling if you’re an addict) is harder to say no to if you want it when you’ve been drinking. People who wouldn’t normally indulge, especially if they have hang-ups etc, will when they’re drunk. And alcohol affects different people differently. It’s not okay to use a date-rape drug to get sex either, and that’s how alcohol works on some people.

    3. My experience with drunkenness (quite extensive) is similar. It would not impair my ability to restrain myself from unwanted sex. I become more peaceful and even less willing to demand anything from anyone.

      I have seen, however, that alcohol makes many men and women more aggressive. It does not do that to me. Alcohol is like marijuana, it sedates me and makes me feel and act relaxed.

      Summarize: alcohol embellishes people’s desire to rape or lose the ability to prevent rape. Those same people without alcohol are already likely to be disposed to these conditions.

  11. To the surprise of few, relaxed due process standards have disproportionately affected poor and minority students. “Social justice for me but not for thee” I suppose.

  12. But Lord only knows how they’ll deal with the common cases of two inebriated students having sex.

    I think we all know how they’ll deal with it: the same way they currently deal with it, which is to punish the man only.

  13. I agree that only professionals should be investigating rape/sexual abuse/sexual assault cases etc.

    However, there’s a pretty big fly in the ointment. Traditionally, the police have been really bad at dealing with such cases.

    When someone reports a robbery or any other crime, the assumption is that they’re telling the truth unless/until it’s proven they’re lying. That’s not the case with sex crimes. Women who report such crimes have almost always been treated like shit. This is the main reason we don’t report them. Men who report them were treated even worse.

    And even if it’s accepted that sex took place, the police will find any excuse not to prosecute. There are still plenty of people who think it’s impossible to rape your wife. Sex workers are fair game. It’s not very long since not being a virgin, or even being suspected of that, made you fair game. Half the world still covers their women from head to toe so they don’t provide “temptation”. Many the world over still consider women’s clothing a factor. I’ve seen comments saying that on this website. (Women reporting rape in Sharia-ruled countries end up in prison for adultery or being alone with a man.)

    The police are getting better all the time. The NZ Police are now pretty good, but that’s a fairly recent phenomenon. But most police departments in the US don’t have special victims units, and those that do are overworked. Police officers in general are often not well trained, poorly paid, and overworked. I can see why the Obama administration felt the need to try and redress the balance. I agree their solution was bad though because it relied on universities being much fairer than they were. The authoritarian left took over the process in many places and (mostly) men’s lives were unfairly ruined as a result.

    This is a situation where the best solution still needs to be found.

    1. In the U.S. the general ability to get a conviction on rape is very much against the woman and always has been. It is either he said she said or if the woman takes the stand they try to drag them through the mud. So now we have some science- like the rape kit and what happens, they don’t even test them with the excuse we don’t have the money. Who ever sits around worrying about the innocent guy going to jail, I just don’t get it.

      1. Conviction is always going to be hard, because the definition of the crime involves what’s going on in someone’s head.

        If the dean finds you with a dead body in your dorm room, you’re done, all they have to prove is that (when the knife went in) there was nobody else in the room. We treat rape as the second most serious crime after murder, but if the dean finds you with a naked woman, well, how can it not be “he said she said”?

        When you say “I just don’t get it”, are you indeed proposing a short-cut here, under which “she said” is always enough to put him in jail? All the things which separate our society from places where Stalin could have you shot tomorrow… these are all to be thrown away because some co-ed wants both both the right to sleep with anyone anytime, and the right to certain vengeance?

        Maybe we can’t have everything we want all at once. I’m pretty keen on “innocent until proven guilty”. If college women feel they need more protection, while drunk, from college men, then perhaps there are less radical solutions, like choosing to go to a college that locks the dorms. Maybe BYU still does that?

        1. On second reading that was perhaps more inflammatory than necessary, I’m sorry.

          However I do think that due process, and the presumption of innocence, are extremely important rights, which we are apt to take for granted. Every call I can think of to increase the number of rape convictions wants to weaken them. I don’t think there’s much of a balance here to be redressed.

          I think that by “treated like shit” Heather means also softer things, about police acting professionally, and spending enough on counselling etc. This is an almost orthogonal matter, and one at which universities might actually be competent.

    2. “I can see why the Obama administration felt the need to try and redress the balance.”

      If that was their intent, they put a very large thumb on the scales. I believe they did this knowingly (how could they not?), precisely because they were interested in garnering support from the authoritarian left*. Obama was a very good president, but he was a politician first and a leader second. Same as it ever was.

      *of course they didn’t see them as authoritarian, just an important constituency they wished to please.

      1. Obama did have a tendency to play to the authoritarian left.

        However, I note (and this is a general comment and not directed at you in particular) there is not a lot of sympathy or understanding in this thread for what women have always gone through and had to put up with historically. You (men) will note that most of we women have given up commenting on these threads because we make so little headway. The best of you already made your own way to the right place, but the rest of you don’t seem able to understand what we’re even talking about.

    3. I personally know a sex worker (no, not in her professional capacity) who was raped. The perpetrator got fifteen years, of which he actually served eight.
      It is a kind of bad news/good news story. At least it shows that a prostitute’s reporting of rape is not always thrown in the bin offhand in the ‘New South Africa’. I’m not really sure if this case is unusual, but I suspect it is. It was not a ‘racial’ thing, since both were ‘coloured’. Note that prostitution is still illegal in SA.

      1. It’s been easier for sex workers to get rape convictions here since prostitution became legal. Previously it was hard for them to come forward.

        The former prostitute who began the NZ Prostitutes’ Collective, and was the main force behing legalization in 2003, was made a Dame (equivalent of Sir) in the Queen’s Birthday Honours List just last weekend.

  14. JAC suggests that colleges “may have ideological agendas not held by juries and judges.” We are of course shocked, SHOCKED by the thought that colleges have ideologies.

    At a serious level, I am struck by the way the campus sex-conduct star chambers reveal a more general peculiarity of our times: the Worst Case scenario is applied to everything in the same general category. Mutual sex, stimulated by alcohol, is treated in exactly the same way as violent, coercive rape.

    The same conceptual error can be seen (or experienced) at any airport, where every grandmother in a wheelchair is treated as if she were a potential terrorist. I might add that a similar deformation occurs in most regulations pertaining to the care of the disabled. If this approach were used in medicine, then everyone suffering from a cold in the nose would have to be placed in an iron lung, by law or administrative rule.

    1. “a more general peculiarity of our times: the Worst Case scenario is applied to everything in the same general category.”


      In the same way that the most minor transgression of (mostly pointless) ‘safety’ regulations is treated by Health & Safety committees, for example.

      I think it’s just the case that all such committees or tribunals, having been set up to enforce the rules, are incapable of treading lightly and deciding that some particular instance is too trivial to concern them. The machinery exists, therefore it must be used in all cases.


  15. https://www.bbc.com/news/world-us-canada-44383329

    Judge Aaron Persky of California was removed from office by popular vote yesterday for his lenient sentencing of rapists. Most recently, the sentencing of Stanford student Brock Turner who was sentenced to six months in prison and three years probation.

    The following internet reference is to rape in the U.S military.


    I was looking for an article I read earlier this week about a military male rape victim, raped multiple times, who went AWOL. He was given an “other than honorable discharge” which made him ineligible for medical treatment (for PTSD) and other benefits. He fought the military for many years and just recently had his discharge type changed. The impression I get is that the raped person cannot expect justice from military processes. There are many articles on the internet about rape of males and females in the U.S. military and how poorly it’s being handled. The problem is becoming worse for both sexes.

    1. It seems that rape in the military is so common that women should almost expect to become a victim. I’ve heard of women hooking up with the alpha male not because she wanted a relationship with him, but because then she only had to deal with the attentions of one man and not all of them.

      1. And I read about US police officers regularly forcing ‘sexual favours’ from minor offenders, generally from ‘minority’ (read black) women.
        I don’t know how frequent this is and how reliable that report was, but it is clear the ‘me too’ is but the tip of the iceberg.
        All this maybe leading us astray from the subject, the new title IX, the ‘Dear Colleague’ letter, and it’s nefarious consequences. (I always was and still am a great admirer of Obama and his admin, but there it made a big mistake, IMMO)

        1. It used to be a problem in the NZ Police. Now a woman who successfully charged several senior police officers with rape speaks to all police cadets in NZ.

    2. Was there more than one case for which Persky was being criticized involving being too lenient with convicted rapists?

      Also, nobody seems to ever note that the six month sentence wasn’t Persky’s idea, but was the recommendation of the probation department.

      1. Although Huffington Post is considered to be a questionable source, this article is the one I read about Michele Dauber, the Stanford professor who initiated the recall of Judge Aaron Persky:


        BJ: Thank you for pointing out that Judge Aaron Persky was following the recommendation of the Probation Department. “The statutory maximum sentence was fourteen years; prosecutors sought a six-year term…” “…the Santa Clara County Probation Department, in its presentence investigation report, recommended a six-month term in county jail, and the defense asked for a four-month term in county jail. “During sentencing, Persky said he considered the factors noted by the Probation Office and the “severe impact” of imprisonment on the defendant’s life.”

        Without specifying if they were rape cases, according to the wiki article: “(Following the controversy, the Associated Press analyzed 20 cases where Persky had passed sentence since January 2015 and found that he had followed the sentencing recommendation of the probation department every time.)”


        Instead of focusing on Judge Persky, perhaps I should have focused on Stanford University’s lack of attention and meting out of insufficient punishment to student rapists. Yes, California prisons are overcrowded and efforts are being made to not send people convicted of lesser crimes to them. And, yes, sending a 20 year old white college student to prison would teach him lessons he never wanted to learn. A few months in the county jail, 3 years of probation and a lifetime of being a registered sexual offender might be viewed by some as enough.

        But, what about the impact of all this on Emily Doe? What happened to her justice?

        1. I think it’s all very difficult because I can’t separate one case from the pack of cases in this country, so many of which end up with sentences far too large. While I think Persky made the wrong decision in Turner’s specific case, I also would commend him for having made it a policy to always go with the probation department’s recommendation. His sentencing in the Turner case was obviously not a result of his desire to be lenient with rapists, but part of a general policy to reduce sentences and follow probation department recommendations, and I appreciate that. Still, this resulted in a poor outcome in the Turner case.

          I am still generally concerned that judges have seen what happened to Persky and will be even more likely to hand out harsher sentences. Judges don’t get recalled from being too “tough on crime,” but, with the increasingly long memory of the public (thanks to the internet), many may fear being recalled or defeated in an election for being too lenient in just a single case. In fact, studies have shown that judges already hand out harsher sentences during election years, and the country is already plagued by the issue of severe sentencing: https://www.brennancenter.org/publication/how-judicial-elections-impact-criminal-cases

          To sum up: I think Persky ended up doing the wrong thing for the right reason, and the campaign against him unfortunately portrayed him as someone who didn’t care about rape because he was a privileged white male. I think this is part of a general trend regarding sentencing that will only make things worse when it comes to the U.S. problem with harsh sentencing and an ever-growing prison population.

          1. There is much of what you say that I firmly agree with. Persky’s peers seemed to think highly of him. For many kinds of relatively minor illegal acts, keeping the person out of prison is an excellent move as prisons tend to promote more crime. The recidivism rate is very high. In addition, decisions on penalties are often based on skin color rather than seriousness of the crime. Change is desperately needed.

            I have never been accused of a crime or been in a court proceeding, but if I were, I think I’d prefer a good judge than a jury of my “peers”.

  16. Has anyone read and noticed that the Wikipedia article on Emma Sulkowicx has been stripped of gender based pronouns! (i.e. her = their, she = they etc)

    At first I thought it was an error, until noting the consistency.

    1. it states in the article that Sulkowicz identifies as non binary.

      If you read the talk page you can see they had a couple of minor issues with that because it rendered some sentences ambiguous.

  17. I truly like Flanagan’s sentence:
    “It trivialized something grave: sex crime.”

    Similar trivializations have happened to: treason, oppression, racist, etc. etc.

  18. I just thought of a good question. What if there are three students in a similar situation. They all had a blackout drunk threesome and wake up the next morning. One student runs to tell on the other two to the school administrator. Do the other two automatically get suspended or is it a race between the other two across campus to tell on the other one first? I’m genuinely curious.

    1. In IT security, there’s the rather severe software flaw called a “race condition”. The situation described illustrates why they are so awkward – unexpected orderings of things produce bad results.

    2. MeToo movement taught me that time is of little relevance. If a person thinks they were raped several decades ago, the charge seems valid in that climate.

      Let’s assume just two people claim rape after only a few days. The more interesting question is if they both decide that it was rape what does the university do? I guess the university could say in that case: The two of you are no longer allowed to have sex (while students).

      1. If both people come to the realization that it was blackout drunk sex that they don’t remember, I don’t understand why they would say anything to the school at all. In the case for this post, it seems like the guy went to the school because he was aware she had reported a different situation before. He seemed scared. He could have stayed with her and discussed between the two of them to be okay with the situation. Narcing each other out to the school in these situations is immature. If you are going to drink and make out, expect to be prepared with condoms, a backup plan if you want to leave, stay with a friend etc. I don’t think he told the school out of revenge, though. I think he was really scared. If they both decided it was blackout drunk sex, wouldn’t they just want to have sex again in the morning anyway to do it again? If they both hated it and regretted it, I have no idea why they would ever say something to the university. What should the university do in that situation? Nothing. But if they are doing anything, I mentioned that above. It’s less ridiculous than what they actually did which is suspend the girl.

Leave a Reply