But wait, you say. Didn’t Diane consent when she let Jack touch her breast? No, because consent has to be active, not passive. And Jack has to get Diane’s consent every time he wants to move up another base—a policy first instituted at Ohio’s Antioch College in the early 1990s. Here’s how an Antioch women’s center advocate explained it to freshmen: “If you want to take her blouse off, you have to ask. If you want to touch her breast, you have to ask. If you want to move your hand down to her genitals, you have to ask. If you want to put your finger inside her, you have to ask.” Reaction to Antioch’s policy—including a Saturday Night Live skit—was wildly derisive; eventually, the college closed down. The policy, however, as detailed by NCHERM, lives on all over the country.
Besides, the NCHERM model says that even though Jack had no way of telling whether or how much Diane had been drinking, it was his responsibility to determine if she was “incapacitated”—a term of murky meaning. If she was, any fondling they did, no matter how great her zeal, was sexual assault. She doesn’t even have to lodge a complaint; the college has to investigate if, say, Diane’s resident adviser- sees her and Jack outside the party and suspects she’s drunk. And OCR says a single incident of sexual assault can be enough to create that hostile atmosphere.
“There have been widespread accusations,” Sokolow says, “that colleges don’t handle sexual assaults well.” The new OCR guidelines in the Dear Colleague letter, he explains, grew out of the Yale case as well as other Title IX claims accusing colleges of pussyfooting on campus sexual assault investigations of athletes. In one instance, a University of Georgia freshman said she was gang-raped by basketball players. (One was acquitted in court; charges were dropped against two others.) In another, women at the University of Colorado at Boulder claimed they were raped by football players. (No criminal charges were brought.) The women won major settlements.
To play by the new OCR rules, colleges must hold mandatory education and awareness programs for freshmen on what constitutes sexual assault. They’ll also teach the newest item in the assault prevention tool kit: bystander intervention. “If you’re a predatory rapist,” says Sokolow, “I can’t educate you or make you feel empathy. But I can teach the people around you to recognize you.” He cites the TV show What Would You Do?, in which producers stage vignettes of parents berating kids or teens egging drunken peers on, as a model: “The literature shows if you just watch that show, you’re more likely to intervene.”
Sokolow has done Title IX compliance training all across the country: at Stanford, UVA, Vanderbilt, UNH, Bowdoin and, locally, La Salle, St. Joe’s and Drexel, to name just a few. (Yale, he says, has been a client for years.) His aim is to get administrators and campus safety staffs to refocus through what he calls “a civil-rights lens.” You can look at Jack and Diane through one lens and ask, “How much did she have to drink? Was her behavior provocative?” Or you can change that lens for one recognizing that she was a victim, and instead ask: “How did Jack isolate her? What actions enabled him to take advantage of her weakened state?”
Though alcohol is involved in 90 percent of campus rapes, it shouldn’t cloud the waters, Sokolow says: An incapacitated woman can’t provide consent. The new guidelines are intended, Ali has said, to do no less than “change the culture.” What does that mean for young men? “It’s their job,” Sokolow says, “if they’re going to have sex, to figure that out—and to err on the side of caution.” Some people are still walking and talking—and grinding—when -incapacitated. Despite all the hoopla about rape drugs, they’re rare on campuses—and rarely -needed. The Partnership for a Drug Free America says more young women than young men drink these days.
WHILE SCHOOLS FEAR the loss of federal funding or getting hit by Title IX complaints if they don’t follow the new rules on sexual assault, our hypothetical Jack has other worries. He could find himself summoned to the dean of students’ office and told he’s being investigated for sexual misconduct, then peppered with questions: Did he ask Diane’s permission before he kissed her? Before he reached under her skirt? What did he say to get her to go outside with him? Where and when did he leave her? Jack could be forced to leave campus—staying, say, at a motel at his own expense—until the dean decides how much of a danger he poses to the community, whether to call in the police, and whether a campus judicial hearing is in order. Depending on the school’s rules, Jack may not be entitled to a lawyer. And if he approaches Diane to try to “talk things out,” he can be charged with intimidation.
And then there’s the new OCR requirement that has raised the most alarm among civil libertarians: the lowering of the evidentiary standard to that used in civil-rights litigation. For the school’s purposes, a “preponderance of the evidence” is now all that’s required to find Jack liable, not the more familiar “beyond a reasonable doubt” of criminal cases or the intermediary “clear and convincing evidence” standard many schools used to employ. Women’s rights activist Wendy Murphy, who’s drawn up Title IX claims against Harvard, Princeton and UVA, considers this change transformative, because it tells victims they’re more likely to win. “Schools used to say, ‘Oh, we can’t figure it out, one says it happened and one says it didn’t,’” she explains. “The ‘clear and convincing’ standard was more painful. Now, it’s very easy for schools to say, ‘Well, her description was a little more believable than his.’” That makes it more likely a hearing board will convict and not worry that the accused will sue for violation of his due process rights. And for colleges and universities, Murphy says, it’s all about the liability.
A number of schools, including Stanford, Princeton and UVA, have kicked in the past against lowering the standard of proof in sexual assault cases. Now, Murphy warns, “They are going to change of their own volition or be made to change.”