May 15, 2014
At Yale, as an official memo released last summer reveals, the definition of “non-consensual sex” in disciplinary proceedings is so broad that it includes reciprocating a sexual act without an explicit signal to go ahead — even if you stop immediately when asked to stop. Ironically, this creates a Catch-22, as universities find themselves criticized for insufficiently harsh punishments for nonconsensual sex.
Universities are under strong pressure from activists, backed by the federal government, to use a “preponderance of the evidence” standard in adjudicating sexual assault complaints. This is the lowest legal burden of proof, often defined as meaning that it’s more likely than not that the assault occurred. (Traditionally, disciplinary charges by students have been judged by the higher standard of “clear and convincing evidence.”) But what does that mean in practice, especially in he-said/she-said cases? Since anti-rape activists insist that wrongful accusations are extremely rare (and demand that college investigators and “judges” be trained in that dogma), the goal seems to be a presumption of guilt for any accused student, unless there is strong proof of innocence.
Obviously, this is not a question of sending people to prison. Nonetheless, it means that a student may be expelled from college, with a black mark that will follow him to other schools and places of employment, and in some ways acquire the equivalent of conviction for a very serious crime without any of the safeguards of a trial.
And, of course, with a dramatically disparate impact on male students, which is not by accident but by design.