Colleges assume unchecked power in sexual consent policies

This article originally appeared in the Los Angeles Daily Journal.

You know a possible way to lower the murder rate in this country? Simply declare all 16- to 24-year-olds — the age group that commits the most murders — to be murderers.

We wouldn’t have to put this whole population behind bars, mind you, but anytime someone was murdered we could lock up everyone in that age group who had been near the murder scene. After all, they have been declared guilty by virtue of their age. Yes, this may mean that hundreds of thousands of innocent people might go to jail, but such actions would make it more likely we would get the guilty ones, too!

Hopefully, this plan sounds insane to you (and if it doesn’t, I fear for the sake of the republic). Do we really trust citizens, the police or the government not to abuse such a power? Do we want to be a society where a dozen innocent people might have to be imprisoned lest one guilty person walk free?

Thanks to the protections Americans enjoy under the Constitution, such a law would not survive for an instant. On college campuses, however, noble principles like due process and “innocent until proven guilty” are too often treated like inconvenient impediments to “social justice.” Gettysburg College in Pennsylvania offers a stunning example in its “sexual misconduct” code — a policy intended to combat one of the most heinous crimes a human can commit against another: rape.

Under the policy, “consent” to sexual interaction is defined as “the act of willingly and verbally agreeing (for example, by stating ‘yes’) to engage in specific sexual conduct. If either person at any point in a sexual encounter does not give continuing and active consent, all sexual contact must cease, even if consent was given earlier.” The policy’s broad definition of sexual interaction includes not only sex acts but also “touching,” “hugging” and “kissing.”

This rule effectively makes every student — man, woman, married or single — guilty of sexual misconduct. Does anyone get verbal consent to hug their friends and then continue to ask for it the entire hug? Should every time you tap someone on the shoulder be a violation of a university policy? Gettysburg’s rule does not reflect reality, and so it criminalizes perfectly normal intimate and even merely affectionate interaction.

When the Gettysburg administration was asked how it could defend such a policy, it essentially answered that the policy exists and is enforced, but it has not been enforced against people for merely hugging. So what the university is saying is, “Yes, we do retain the power to find your friends and children guilty of sexual misconduct at any time, but trust us — we’ll only use it when we think someone has done something really bad.” It’s lunacy to trust administrators — or anyone — with the power to punish on the promise they won’t abuse it.

To assume that such an arrangement will work in a fair and just manner is to assume the infallibility (not to mention the complete good faith) of those in charge of administering the system. And if there is one thing I have learned in my work, it’s that college administrators (or anyone, for that matter) are not infallible. This policy increases the likelihood of finding someone guilty of a serious offense by essentially disregarding the accuracy and fairness of the system.
Gettysburg is not alone in abandoning basic ideas of procedural fairness when it comes to sex. Antioch College in Yellow Springs, Ohio, famously drafted a code that requires verbal consent to every step of any sexual encounter. Ohio University’s “Statement on Sexual Assault” declares that “sexual assault occurs along a continuum of intrusion and violation ranging from unwanted sexual comments to forced sexual intercourse.”

When I first came across the Ohio University policy years ago, I found it truly chilling. A policy that cannot make a principled distinction between rude words and rape dangerously trivializes the most terrible of crimes. We must educate about the threat of sexual violence and coercion, we must prosecute those found guilty and we must encourage students to report assaults. But it is simply not a solution to declare everyone presumptively guilty and work backward from there. It is precisely because rape is such a horrible and serious crime that we must approach the issue with sane and sober policies that protect the rights of victims and the accused and that do not criminalize normal human interaction. It is time for Gettysburg College to reform its policies.