This shouldn’t need to be said, but accusations of campus sexual assault are rarely black and white; rather, they usually include some shades of gray.
Proponents of draconian campus sexual assault rules like to cite examples that no one would disagree is sexual assault. During an annual gathering for the American Law Institute, New York University law professor Stephen Schulhofer described the need to overhaul rape law using the example of a passed out co-ed. He suggested that if a woman drank heavily at a party and passed out, and a man came up to penetrate her with his finger, it would not be considered a crime. It actually is a crime, but no one hearing a story like that would think otherwise anyway.
Schulhofer, who is trying to rewrite current law to make it easier to convict people accused of sexual assault based on little to no evidence, is being helped by his colleague Erin Murphy. Murphy, too, offered an obvious example of sexual assault to insist that drastic measures need to be taken.
“The problem is, of course, that it’s not just people on dates to whom the sexual assault code applies, it also applies to people riding on the subway or walking down the street,” Murphy said at the ALI annual meeting.
Again, no one thinks it’s okay for a stranger on the subway to reach out and grab or kiss another person.
Yet on college campuses, where the new rules are already being applied, accusations of sexual assault rarely fall into such distinct categories. Sometimes, serious accusations that appear to be true turn out to be false (see: Duke Lacrosse and Rolling Stone). Other times, violent accusations turn out to be less concrete than the accusation implied.
For example, Columbia University student Emma Sulkowicz claimed she was brutally attacked and raped by a friend. But friendly messages she sent to the accused student after the alleged assault raised questions about the validity of her claim.
The attack described by Sulkowicz would appear to be rape to anyone who heard it. But the encounter didn’t go the way she originally said it did. Such is the case with many accusers of campus sexual assault.
Other students who have claimed to have been sexually assaulted have really been embellishing regretted sex stories. The accusers usually claim to have been too drunk to consent, when evidence — including text messages, witnesses or even the accuser herself — suggest otherwise.
It shows that so many of the sexual assault accusations on college campuses these days are actually “he said/she said” situations, and not the clear, obvious instances of rape that lawmakers and advocates use as examples to bolster their argument for expanding rules.
Of course a college should throw the book at a student who physically assaults another student and rapes her. Of course a college should punish a student who has sex with another student who is passed out (pending an investigation from trained law enforcement professionals, of course.) Everyone believes these situations are reprehensible.
The problem comes from treating a student like a rapist when there is no evidence that he is one, and especially when there is evidence that he isn’t one. Yet advocates would have you believe that a sexual assault accusation is all the evidence that’s needed.
The sad reality is that these situations are more likely to be consensual sex later regretted. The idea that college students are getting brutally raped left and right is wrong, and enacting policies that pretend otherwise is a dangerous affront to due process.
