The New Rules of College Sex

How the federal government and a Malvern lawyer are rewriting the rules on campus hookups—and tagging young men as dangerous predators

But Samantha Harris, of the Philly-based nonprofit Foundation for Individual Rights in Education, or FIRE, which advocates for individual rights at colleges, says the new standard violates accused students’ due process rights. “Campus judicial procedures already have questionable -validity,” she says. “The preponderance standard, which essentially means 50.1 percent proof, will just compound those problems.” She says the Supreme Court’s precedents demonstrate that evidentiary standards should be higher, not lower, when so much is at stake, as FIRE argued in a lengthy letter to Russlynn Ali. “We’re not sending these students to prison,” Harris says, “but the terminology is the same. They’re found guilty of serious criminal offenses.” Perpetrators are subject to expulsion, which affects their employment and social prospects. Harris blames the guidelines, not the schools: “Their hands are tied. The loss of federal money would be catastrophic.”

Why don’t colleges just turn sexual assault cases over to police to prosecute? Because there’s rarely enough evidence to convict in a real court of law. Harris points to a case at the University of North Dakota in which a judicial board found a student guilty of rape under the preponderance standard and expelled him. The victim had also reported the rape to police—who charged her with filing a false report. “The potential for abuse and injustice is tremendous,” Harris says. “We have to protect victims’ rights, but how many innocent students is it right to convict to do so?” Due process, she says, doesn’t just safeguard the accused; it preserves the integrity of the judicial system. “If I were sending a son off to college now,” she adds, “I’d be very concerned.”

Sokolow’s response? “FIRE is sticking up for penises everywhere.”

THE WORLDS OF Harris, Murphy and Sokolow are largely theoretical; Kris Clarkson’s is, as the kids would say, for real. He’s the dean of students at Juniata College, a small liberal arts school in Huntingdon, 100 miles west of Harrisburg. He’s also worked at Hobart and William Smith, Syracuse, Dartmouth, Bennington and UMass Amherst, though he’s been at Juniata for 16 years. So, is there an epidemic of sexual assault at Juniata? “Oh gosh, I hope not,” he says. “Last year we had four incidents that were adjudicated”—heard before boards made up of faculty, staff and students. “We do orientation for board members in terms of procedures,” Clarkson says, “but there’s no specific training on topics like sexual assault.” The new guidelines dictate that there will be.

Clarkson says the Dear Colleague guidelines “set a tone—you better do this or else. They don’t leave a lot of room for working through the teachable moment.” He bristles at being told This is how you need to do it—“as though they know our campus and our students better than we do.”

Under the new federal rules, a school must inform a victim that she can file a complaint with the hearing board, file a Title IX discrimination claim, file criminal charges with the police, or any combination of the three. Schools are now required to have Title IX coordinators to walk students through the process of filing Title IX complaints. Clarkson says Juniata already makes it clear police can be informed if a student chooses. But when it comes to sexual assault, “The victim may want something done about it, but doesn’t necessarily want that to result in a criminal record.” Juniata students don’t have the right to an attorney at hearings, and the guidelines don’t require them to. Contrary to assertions that campus judicial boards are too lenient, Clarkson says that in Juniata he-said-she-said cases, “More often than not, the guy is toast.”

Deborah Nolan, dean of students at Ursinus College, thinks the guidelines will suppress reporting at her school, since any college official who hears of an incident must now initiate an investigation. “Students haven’t been afraid to tell us what’s going on,” she says. “That’s going to change.”

BACK IN 1991, Joe Biden, then chairman of the Senate Judiciary Committee, announced a new finding by his staff that rape in America had reached “epidemic proportions,” exceeding more than 100,000 -annual offenses for the first time. That conflicted with the Justice Department’s figures, which showed the rate unchanged between 1973 and 1987. There’s a similar disconnect between the numbers in the Justice Department’s most recent report on campus sexual violence, which came out in 2007, and schools’ Clery Act reports.

The Clery Act is named for a Lehigh University freshman who was raped and murdered in her dorm room by a fellow student in 1986. Jeanne Clery’s parents learned there had been 38 violent crimes on Lehigh’s mountainside campus in the three years before her murder. For a quarter-century, they’ve been pushing for stronger laws—the Clery Act and its successors—on how colleges report crimes to the federal government, and thus to the public, through Security On Campus, their nonprofit headquartered on an obscure King of Prussia cul-de-sac.

Those Clery Act reports contradict Joe Biden’s claim of an epidemic. Take Temple University. There are 30,000 students at its main campus on North Broad Street. The student body is 55 percent female, so if the one-in-five DOJ figure for sexual assaults is correct, 3,180 of the current female students would have been sexually assaulted while at the school. And yet Temple’s Clery Act report shows five sexual assaults in 2007, two in 2008, and two in 2009.

So is there an epidemic of sexual violence at Temple? “I would not put the word ‘epidemic’ in that sentence,” dean of students Stephanie Ives demurs, seated at a boardroom table with anti-sexual–violence -posters spread out before her.  Ms. magazine cited a one-in-four figure for campus sexual assaults back in 1987, she says, and the problem remains “as consistent and traumatizing as ever.” Victims are frequently confused about what they’ve experienced, she adds, and fear reprisals and retaliation.

Ives, who has 17 years’ experience in her field, has applied for a $300,000 grant from the Justice Department’s Office on Violence Against Women. “They’re highly competitive,” she says. “But I’m confident we have the infrastructure to manage the grant.”

Temple freshmen are blanketed in information on sexual assault. Besides omnipresent posters and pamphlets, they get training at orientation and ongoing programs in the residence halls: “We try to help them understand that that gray area isn’t as gray as you might perceive.” There’s a special sexual assault unit within the counseling department. And there’s the new “Say Something at Temple” bystander-education program—“The thing I’m most proud of,” says Ives.

Yet with all this protection, education and awareness-raising in place, only two reported sexual assaults in 2009, among 30,000 students? Where’s the epidemic?

“I don’t want to lose my grant,” Ives says, with a nervous laugh. “But what was Vice President Biden thinking?”

did doesn’t seem like a crime to you, here’s how NCHERM’s model policy defines sexual assault: “any intentional sexual touching, however slight, with any object, by a man or a woman upon a man or a woman, without consent.” That Diane got herself hammered beforehand doesn’t matter; the OCR warns the school not to punish her for breaking underage-drinking laws, since that could have a “chilling effect” on reporting offenses. And the new guidelines are all about racking up more sexual assaults.