An Unlikely Solution for an Impossible Problem

Over the last few months, we’ve seen a number of rape accusations on college campuses, and some significant muddying of the waters by the colleges themselves, by journalists, and by people passionately taking one side or the other; and also a lack of will on the part of law students and faculty to spend much time considering the judicial treatment of such egregious offenses as rape. I’m fortunate not to be in an administrative role that requires me to be making decisions about such matters, but I can’t help feeling that the present means for dealing with sexual offenses on campuses aren’t working.

First of all, why do colleges have committees that try sexual offenses? [Got it– it’s because of Title IX. But I mean, why in principle?] I can understand an Honor Board that would deal with cases of cheating, plagiarism, lab sabotage and the like, because these are academic offenses and an academy is set up to determine what is OK and what is not in matters of intellectual probity. But to gather an economist, a historian, a chemist, a paleontologist, a philosopher and a human-resources administrator (imaginary example) to hear evidence and pass judgment on such matters as whether consent was given or not, and to issue a verdict and a sentence, seems to stretch the categories. My first instinct on trying to think about this problem was to say: Rape is a crime; the proper place for trying crimes is the courts; rather than the campus police, the town police should be called to the scene whenever an accusation is made and apart from fully cooperating with the investigation, the college should keep its hands off the whole business. (A dean I chanced to speak with privately agreed with me, not that his college is going to make this their policy any time soon.)

Why don’t colleges hand over students suspected of rape, as they would students suspected of arson, to the public authorities?

I assume (I’m not a lawyer and haven’t delved into the matter, so I merely assume) that the things distinguishing rape-on-campus from rape-in-general is the US legal view that a university or kindred educational institution has the responsibility to act “in loco parentis,” in the place and role of a parent toward the students who enroll there. As a parent (this is a Platonically idealized parent, you’ll see), the college must take steps to nourish, safeguard, and instruct its charges, ensuring that they won’t be exposed to various kinds of harm that go well beyond the usual liability provisions of a business. If you lean on the balustrade of a motel and it comes loose, you can of course sue for injury and negligence, but if you lean on the balcony of a college dormitory and the same thing happens, the college is presumably held to a higher degree of watchfulness, not least because there are actual parents who will contend that the college has failed them as well as the student. Now let’s extend this thought to the case of a student who is, God forbid, raped on campus by another student. The student who was raped can bring suit against the college for dereliction of duty, I suppose, as well as against the student rapist. This puts the college in the odd position of being potential defendant in a civil suit as well as the arbitrator in its own quasi-criminal investigation.

For that reason, the college has a quasi-parental responsibility to the student accused of sexual misconduct, as well as to the student making the accusations, and (I hypothesize) this parental role is what leads colleges to refrain from delivering student offenders directly to the police. (A non-student who raped or attempted to rape students on campus would of course not benefit from this courtesy.) To outsiders, though, this must look like a curious medieval relic of guild justice, in which one’s peers are not the unwashed public, but exclusively the happy band of faculty and fellow students. In the case that the accusation was not tenable, and the student accused of rape, handed over to the police and indicted for a serious criminal offense, had emerged with a not-guilty verdict, perhaps the college would then be liable for failing in its duty to protect the accused student. (Undergoing criminal prosecution is no picnic, especially since, as I recently read, 90% of defendants waive their constitutional rights and file a guilty plea rather than brave a prosecutor’s threats of substantial prison time. But considering that rape is such a scurrilous crime, defendants with a reputation to protect might prefer to plead not-guilty, a hazardous and financially potentially ruinous course. The fact that a jury trial is much rather the exception than the rule puts a dent in the common conception that the accused are innocent until proven guilty.)

“Sexual misconduct” moreover covers a wider spectrum of activities and utterances than are actionable in the courts. The fraternity students who chanted offensive rhymes in front of the Women’s Center on one campus could probably not have been prosecuted under Connecticut law (again, I am not a lawyer and haven’t checked), but they certainly offended against the standards of their academic community and were rightfully called into the (campus) dock for it. The boundaries of permissible and impermissible behavior are different in the jurisdiction where a campus sits and on that campus itself; and they’re not consistently different, as they would be if, say, the public standards were always stricter or looser than the college’s standards. But their non-equivalence does create an anomaly.

I’m not sure if this amounts to a strong endorsement of the solution that came to me so quickly. It might seem that the prospect of criminal prosecution would deter some potential offenders. But I don’t have much faith in the ability of the police and the courts to determine truth and assign fault fairly; and what they do is done with a heavy hand.

So what to do upstream from potential offenses? Not, I think, segregate the sexes (for, newsflash, not all unwanted sexual activity happens between people of opposite sexes); nor treat students like offenders on probation. Attempts by colleges to create explicit checklists for the permissible or non-permissible character of sexual behavior (or behavior that might be interpreted as sexual in nature) have excited much laughter. It’s a bureaucrat’s solution for an eminently non-bureaucratic problem, namely what happens when a bunch of young people, from different backgrounds, with different attitudes about all kinds of things, some in a highly experimental and risk-taking frame of mind, some more prudent, are thrown together without a great deal of supervision. A checklist at least gets things on the record and leaves a paper trace, just what administrators like. But students think of themselves as already engaging on their adult lives, and they certainly are not imagining that they’ll pursue happiness with the Documented Sexual Consent Form always to hand.

I would simplify the process. Here’s how consent works in my draft utopia. Anyone can ask anyone for anything. But anyone can always say no to anyone. When saying no, no reason need be offered, indeed should be offered, lest the reason (You’re the wrong gender; I don’t go for threesomes; Fugazy is my least favorite band; I’m already with someone) seem to the asker just a token obstacle to be cleared out of the way. And a “no” is final until the one asked spontaneously revises it. Threats, physical force, chemical disablement, and so on are considered next-door to rape and will be grounds for summary ejection. Ejection from the immediate community, that is; I don’t expect this set of standards to become current in the wider world for a few centuries yet. I offer this modest suggestion with the further proposal that sex-ed be thought of as a small part of ethical ed.  “[H]aving no conception of the rights of others . . .[a person] could have no conception of his own rights.” (Charles Fried, “Reason and Action.”)