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They can and should specialize. But as feminists issue a series of commands from within the federal government about what the problem of campus sexual violence is and how it must be handled, and as they build new institutions that give life to those commands, they become part of governmental power.
Now that they have the power to adjudicate cases and determine sanctions, they are facing the full range of cases. It is time to govern. The current moment is a classic opportunity to observe how advocates turn their rhetorical tools and social-movement protest into institutional government. The paradigm cases of the movement have been women drugged at fraternity parties and raped by groups of men, or women staggering home from these parties with the supposed help of men who proceed to rape them there.
Included in that paradigm are women who have agreed to have some sex and find themselves forced to have much more, or much different, sex than they signed on for. If those were the only cases that the new system was destined to address, it would be no big deal to trade the megaphone for the gavel. But there are lots of harder cases.
How will feminists handle them? Denial and a taboo on blaming the victim have been the favored strategies among advocates: My own hope is that governance feminists designing and running a new campus sexual assault establishment can acknowledge the full weight of the responsibility they are taking on.
Each of them will come up, some of them often, in the new Title IX student-discipline institutions. Moreover, each of them raises policy concerns that will never be addressed in the language of a single-purpose social movement but that are at the core of responsible government.
Consider the case of Anna, a freshman at Hobart and William Smith Colleges who reported being raped at a party in the first weeks of her freshman year.
Times , July 12, , http: To my mind, there is no question that she was raped, almost certainly by more than one man. Her injuries as reported by emergency-room personnel could not be explained any other way. The problem was figuring out how many people were involved, whether the encounters were consensual, and, if one or more sexual assaults occurred, who was responsible for them. But it seems clear that Anna was alleging sexual assault in two settings: Anna identified her alleged assailant at the fraternity party, but the prosecutor had testimony, some of which he disclosed publicly, that led him to believe that her sexual contacts there were consensual.
The Board also could have heard that or similar evidence. The Board could have decided, even on a preponderance standard, that the contacts at the fraternity were not supported by enough evidence to hold the identified student responsible for wrongdoing. In my own assessment of the published record, the Barn is almost certainly where Anna sustained the injuries discovered later at the hospital.
Through alcohol-induced memory loss, however, Anna was unable to remember what happened at the Barn; according to the Times , she could not remember being there at all. Thus, for the contacts for which evidence of sexual assault was clear, the problem of identification looms large. Three students were suspected and questioned by the Board. The identity of one of them was supported by disclosures to Anna by a bystander who was present both at the fraternity house and at the Barn. He also told the prosecutor what he saw.
The publicly available information provides not even that level of certainty about the other two students who were suspected. The Board could have decided, even on a preponderance standard, that it could not hold any particular student responsible. And that does not seem to me like shoddy or biased work: A student culture in which a rape like this one can happen is seriously broken.
But the story does not appear to be in fact what it stands for today in the debate over campus sexual assault: The firestorm of blame heaped on Hobart and William Smith bore an unacknowledged but alarming message: Times , July 15, , http: Condemnation of college and university procedures was premature in the notorious University of Virginia rape allegation as well.
The meltdown of the notorious Rolling Stone article about a brutal gang rape in a fraternity at the University of Virginia left readers unsure whether the harm suffered by the anonymous woman student was fictitious, exaggerated, or somewhat accurately described but falsely attributed to members of the fraternity named in the story.
Gang Rape Allegations in Doubt , Wash. Such calls are core to every witch hunt. For my argument that feminists sometimes do gain control over levers of power, see Janet Halley, Rape at Rome: The claim is not that feminists then get everything they want; rather, that they have a will to power and sometimes succeed in their efforts to become governors.
I have this simple message: See generally Stephen J. Whitfield, A Death in the Delta: The Story of Emmett Till American racial history is laced with vendetta-like scandals in which black men are accused of sexually assaulting white women that become reverse scandals when it is revealed that the accused men were not wrongdoers at all.
No reader of To Kill a Mockingbird should be able to forget how this American classic convinces its readers that some of these accusations will be based on racially exploitative evasions of responsibility by white women who willingly had sex with black men and then disavowed it as rape.
But nothing so malign need be at work when black men show up in the dock: Similar dynamics affect gay men, lesbians, and trans individuals: One of the most dangerous effects of the U. See Office for Civil Rights, U.
The severe restrictions under which institutions now labor — for instance, the insistence on the notorious preponderance standard — emerged only in the Dear Colleague Letter and the Questions and Answers on Title IX and Sexual Violence , neither of which was ever opened for comment.
In July of , Harvard announced a new Sexual and Gender-Based Harassment Policy applicable to all who belong to the University community, whether as students, employees, or guests, and new Procedures for Handling Complaints Against Students. Assistant to the President for Institutional Diversity and Equity , http: The best way to correct for this, in my view, is to reduce the Title IX Office to a compliance-monitoring role, and get it out of the business of adjudicating cases.
Campuses are multicultural environments, bringing together people from a wide range of backgrounds sounding in socioeconomic class, cultural and linguistic vocabularies, and historical experience. The question raised by the cultural defense in criminal law comes up here: Adjudicators have to anticipate that their own experiences and biases may play a role in the way that they answer.
For example, a classic casebook rape case, State v. For an in-depth analysis of this case, see Jeannie C. When they met at a local bar, she was working as a secretary and he was out of work, trying to get by fixing and then selling cars he bought through the want ads.
Rusk therefore raises the question: Is that what the legal system should be doing in a complex society marked by immense cultural diversity? Maybe not, or maybe not always. To the extent that the campus-sexual-assault movement expresses the priorities and visions of white middle-class women, it may not be providing us with everything we need to know to make fair decisions in cases involving class, race, and other key differences.
But current pressures are building a sex harassment enforcement system that is indifferent to these concerns. I have a copy of the PowerPoint slides shown to colleagues at Harvard Law School in the Fall Semester of , as the outline for their required training. Approximately two-thirds of the document is devoted to quotations from OCR documents and the Harvard Policy and Procedures about the standard to apply and the procedures to be used.
The remaining third of the document and thus the entire remainder of the training provides a sixth-grade level summary of selected neurobiological research. So far, that is the only training provided to Harvard personnel handling sexual harassment claims directed to the social and psychological dynamics surrounding sexual assault. Without disputing the importance of the insights included in this section of the training, one can ask: Surely not a claim that, because a complainant appears incoherent and unreliable, she has been assaulted.
On all of those, cultural incompetence is okay. This very large class of cases includes sexual intercourse or other sexual contact with persons who have been administered mind-altering substances without their knowledge or consent.
It is such a grave wrong to impose that experience, along with its vulnerabilities, on another person without their knowledge and consent that I think we can all agree those are among the easy cases: Also among the easy cases: No question, people who do either of these things are serious wrongdoers. It includes sexual contact with a person who is not unconscious but severely impaired. Ditto but only somewhat impaired. It includes people whose preferences and judgments differ in their substance-affected state from those they would have entertained or made while stone-cold sober.
It even, apparently, includes at least one woman whose mother rejected the idea that her daughter should or could have consented, and who insisted that her daughter submit a sexual assault complaint to signal moral rejection of the sexual conduct in question.
The accused in this case was held responsible and expelled. Setting aside sex with unconscious persons and persons deliberately intoxicated without their knowledge and consent the easy cases , we could say a person is incapacitated only when rendered physically incapable of intentionally signaling her consent: Or we could set the breaking point somewhere on the spectrum between these two extremes.
We could say that she has to be really impaired or only a little impaired to be held incapable of giving consent even if she did assent or even consent.
Compound all of that with the differences between incapacitation or impairment, however we define them, at the time , with a frequent concomitant of heavy drug and alcohol use: This poses more than merely evidentiary problems and credibility issues in cases involving alcohol and drug use, though those are severe enough in themselves.
Sometimes we will say yes, for instance when we think that memory loss was caused not by drinking or drug use but by psychological dissociation from intensely aversive experience. But what if it is selective; what if it is self-serving; what if it is motivated by unconscious racial bias or by a felt need to disavow shame, avert a crise de conscience , or pacify an angry parent, spouse, or partner? I have arrayed these cases on three spectrums from easy to hard: Query whether the case reported in this article is hard or easy: The recipient testified that he thought they manifested ambivalence.
He knew she had been drinking but not how much: She invited him to her room, and he testified that she initiated sexual contact when they entered it together. The Yale sexual harassment process resulted in a finding of no violation. So are young men. It is an immense public health problem. This raises a final layer of difficulty: