September 16, 2014

FIRE: Due Process Advocates Take Critical Look at How Colleges Are Dealing with Sexual Assault Allegations.

Sexual partners, of course, do not always agree on why they are having sex. Should that really negate otherwise valid consent? How clearly must each partner communicate their reasons for engaging in sexual activity? Is “yes, because” the new “yes”? That OSU has set forth this absurd standard is a stark illustration of how the movement to better protect students from sexual assault has led some institutions astray.

As we move away from a definition limited to what Susan Estrich once critically described as “real rape” — forcible sex by a stranger — into the newer, more ambiguous definitions, a fair system would be charging more women with rape, and finding them guilty. But while the “real rape” definition made rape something mostly done by males, and the new system is far more gender-neutral and encompasses all sorts of suasion and ambiguity as rape, the point of all these programs still seems to be to find and punish male students. That, in itself, is a Title IX violation, and the more that ambiguous, non-violent conduct gets included in the definition of rape, the more women will be included, and the more the disparity in prosecution/punishment will stand out.

Related: We need to teach women not to rape.

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