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

Jack and Diane are at a party at their college. It’s September of their freshman year. They’re still excited about being away from home, on their own for the first time. They don’t know each other, but they’ve noticed one another, at orientation and in the dining hall.

Because they’re underage, they can’t drink at this party, but before she arrived, Diane “pre-gamed,” as the girls in her dorm call it—downing mixed drinks, doing gummy-worm and Jell-O shots. Jack had a few beers.

The liquor’s gone to Diane’s head. On the dance floor, she makes eye contact with Jack. He maneuvers his way toward her. She grabs him by the crotch, then whirls around and pushes against him, letting him grind away. Jack can’t believe it—she’s so pretty. She smells so good.

“I can’t hear myself think in here, it’s so loud!” he shouts into her ear.

She smiles at him. “What?”

“Too loud!” He takes her hand and leads her outside, into the autumn night. She looks at him expectantly. He puts his arms around her, pulling her close, and begins to kiss her. She drapes against him. He touches her breast, and when she doesn’t protest, does it again. He moves his hands to her rear, cupping her buttocks. She kisses him back, frantically eager. He reaches underneath her dress.

Jack doesn’t know it, but he’s just created what the Department of Education calls a “hostile environment” for women on his campus—a violation of Title IX for which his college could lose all federal funding. Should Diane press sexual assault charges against him with the school, he’ll be tried in a judicial hearing that fails to guarantee him the most basic American legal rights—the right to counsel, the right to confront his accuser, the right not to be convicted unless found guilty beyond a reasonable doubt. He could well be expelled, and have a record that will hound him should he try to get into another school.

And here he thought it was his lucky night.

BACK IN APRIL, Vice President Joe Biden stood in front of 600 students at the University of New Hampshire and spoke out against an epidemic of sexual assaults on college campuses, garnering national publicity with his cri de coeur: “No matter what a girl does, no matter how she’s dressed, no matter how much she’s had to drink, it’s never, never, never, never, never okay to touch her without her consent.” The statistic Biden cited—the U.S. Justice Department’s finding that one in five college women are victims of sexual assault—is bound to give anxious parents pause: For this they’re paying $50,000 a year?

Biden’s speech was meant to focus attention on what U.S. Assistant Secretary of Education Russlynn Ali calls “a terrible, alarming trend” of campus sexual violence. Ali had just disseminated a 19-page “Dear Colleague” letter to all colleges and universities that receive federal aid—which is all but two in the country—detailing how they’re required to combat that trend. Her letter came in the wake of a Title IX complaint lodged in March by 16 students and alumni at Yale, asserting that the university failed to eliminate a “hostile sexual environment” perpetuated by, among other things, an e-mailed “Preseason Scouting Report” on 53 freshman women that ranked how many beers a male student would require before having sex with them, and fraternity pledges who shouted “No means yes! Yes means anal!” outside a dorm.

While women’s rights advocates have lauded Ali for finally putting teeth in Title IX—the 1972 federal law that prohibits colleges from discriminating on the basis of gender—a quieter groundswell of protest has charged her with trampling on the rights of young men accused of sexual assault in her rush to protect victims. College deans say she’s stripped their ability to deal with delicate he-said-she-said cases in fairer, more nuanced ways. Other administrators warn that even with the guidelines, campus hearing boards are ill-equipped to investigate assaults and rapes—all in the midst of another epidemic, binge drinking. Peter F. Lake, director of the Center for Excellence in Higher Education Law and Policy at Stetson University, told the Chronicle of Higher Education, “We’ve been lured into doing something in a criminal justice model that the criminal justice system itself hasn’t been able to deal with.”

But beyond the fundamental questions of fairness, Russlynn Ali’s guidelines impose a paralyzing “nanny state” on college campuses here in Philadelphia and across the country. At precisely the time in their lives when young men and women should be exploring what sexuality means, the new rules choke off their freedom, limit their choices, and encourage the canard that all males are unrepentant predators. What’s more, they position women as helpless victims who require bureaucratic protection from those males—victims with no responsibility for their own behavior.

Heaven help those women when they graduate.

IF YOU’RE CURIOUS as to how student sexual misconduct became a federal civil-rights liability for colleges, the man with the answer is perched in shorts and bare feet on a big, comfy sofa in the vault-ceilinged living room of his stone home in Malvern. Brett Sokolow, a ’97 Villanova Law grad, is founder of the National Center for Higher Education Risk Management, or NCHERM (pronounced “en-kerm”). For more than a decade, the genial 39-year-old has been warning colleges and -universities—he’s of counsel to more than 20, and has advised thousands—that the day was coming when courts would allow Title IX claims against them for sexual assaults. “The ‘Dear Colleague’ letter was one of the most important moments of my professional life,” he says.

Sokolow’s interest in campus safety stems from his sophomore year at the College of William & Mary, when he began dating a fellow student who’d been sexually assaulted: “She became an activist, and I became one as well.” He thought then that Title IX should have provided her redress, but “everybody said, ‘Title IX is just athletics.’” Actually, there’s no mention of sports in the law, which is enforced by the Education Department’s Office for Civil Rights (OCR). (Disclosure: One of my relatives has been a victim of rape; another was once sanctioned by a college for sexual misconduct.)

Sokolow has built a business out of advising colleges on how to stay one step ahead of all sorts of legal liability, using hypothetical scenarios like the one in this article starring Jack and Diane. In a series of “white papers” for his clients, he’s traced how courts have been reinterpreting the laws on sexual harassment and assault to allow for Title IX complaints. For example, a finding of force was once necessary to prove rape. Gradually, the question instead became one of consent. And according to NCHERM’s “zero tolerance” model sexual assault policy, which many colleges employ, the burden is on “the initiator of sexual behavior” to obtain consent.

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.”

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.

That’s because if you look at campus sexual violence through a victim-advocate lens, you have to believe vast legions of rapes and assaults go unreported. There’s no other way to explain why the Clery numbers are so low and the Justice Department’s so high. What’s interesting about the 2007 Justice Department report is that its researchers didn’t ask the 5,446 female students who took their online survey if they’d been sexually assaulted. They decided for the young women, who despite their on-campus training and support were deemed too ignorant to know.

Specifically, the survey asked whether students had experienced unwanted sexual contact, defined as forced kissing, grabbing, fondling, touching of private parts, and/or oral, anal or vaginal penetration via finger, mouth, tongue, penis or object. If students checked YES, as 1,073—one in five—did, that was deemed a sexual assault. Of those students, 682 were classified as having undergone attempted sexual assault, and another 782 completed sexual assault, with 651 of the latter saying they were passed out, drugged, drunk, incapacitated or asleep at the time.

“If drunken hookups are defined as sexual assaults,” a female colleague says, remembering her college days, “then I’ve been sexually assaulted 177 times.” Those peering through the victim-advocate lens, however, chafe at any suggestion this method is flawed. “As if there’s some sort of number that would be all right,” Sokolow sniffs.

Still, when researchers asked the young women themselves if they considered what happened to them “rape,” three-quarters of the “incapacitated” victims didn’t. Only three percent said they’d experienced physical or psychological harm. Only two percent reported what happened to campus security or police. Asked why they hadn’t, the women said they didn’t consider the incident serious enough (66 percent) and/or that it wasn’t clear a crime or harm was intended (36 percent). Half said they themselves were partially or fully responsible for what had happened. The gray looked pretty gray to them.

But the fact that the victims didn’t think of themselves as victims, Sokolow says, misses the point: “They have to learn to say, ‘This is something that was done to me, not something I did to somebody else.’”

Deborah Nolan says that in 25 years at Ursinus, she’s heard a ton of sexual assault stories, and only one didn’t involve alcohol. Drinking lowers inhibitions: “Sometimes we want to be coaxed into things. But it makes people irate when you say that.”

I have a college-age daughter. I tell Sokolow that if she got drunk and had sex with someone, I’d jolly well expect her to take responsibility. He isn’t buying it: “She should have the right to strip naked and run through the streets and be unmolested. She didn’t make that happen; the molester did.”

IN ITS 2007 REPORT, the Justice Department wrote that the primary implications of its study were the “relative rarity” of drug-facilitated sexual assault, meaning roofie-aided, and “the need to incorporate alcohol and drug messages into sexual assault prevention and risk reduction programming.” But remember that $300,000 grant Ives applied for? Its guidelines discourage programs that focus on alcohol use, because they “reinforce the myth that victims somehow provoke or cause the violence they experience.” In other words: The government knows what works, but won’t let you do it. How does Ives reconcile that with what she sees every day on North Broad Street? “Temple’s approach has been that there is an intermingling between mental health issues, substance issues and sexual violence issues,” she says carefully. She really does want that grant.

The trouble is, schools have no idea how to address their drinking problem. They’re afraid to take draconian measures—who wants to go to a college where you can’t get drunk? But while Diane may still be out there pre-gaming, as Sokolow puts it, “The game is different now.”

NCHERM’s founder defends schools against Title IX claims even as he represents assault victims, neatly playing both sides of the field. And his job’s been very good to him. In August, NCHERM hosted a seminar for college administrators on the role of the newly required Title IX coordinator. One hundred seventy people attended, at $2,500 a head. Gross revenue: $425,000.

Sokolow has been advising colleges that students found to have engaged in sexual assault should be expelled as quickly as possible, to guard against Title IX liability. He’d like to see a national database of offenders, so schools could check names and Social Security numbers when such students try to transfer. He’s not saying they’re all predators-—“I’m saying you can’t tell if they are or not.” Asked if he’d accept a transfer student who’d been expelled for sexual assault, Juniata’s Kris Clarkson says, “Oh gosh, no. How could I?” And yet, Deborah Nolan says, “I’ve seen these young men broken in ways that just break me, too. I see such shock and remorse and guilt. They want to make it right.”

Now, they won’t have the chance. “The number of expelled students is going to go way up,” Sokolow predicts—a prospect he’s looking forward to.

IT WOULD BE ONE thing if there were proof that the barrage of education and awareness being foisted on colleges has any effect on women’s safety. There isn’t. A major review of research on the subject concluded, “It does not seem useful to spend resources on attitude change programs as currently delivered,” and recommended focusing on self-defense skills and alcohol use instead.

Why, if researchers know what works, does the government require schools to do what doesn’t, promoting the erection of a monolithic assault-prevention infrastructure? Heather Mac Donald, who writes on the topic for the Manhattan Institute’s City Journal, blames “rape industrialists” who strip women of “volition and moral agency” by insisting they’re never responsible for what happens to them, even when they “drink themselves into near or actual oblivion before and during parties.”

There is something insultingly infantilizing about the Obama administration’s approach. You can’t possibly protect yourselves, the government is telling our daughters, so we’ll teach the men around you to protect you instead. Kris Clarkson’s seen the effects of such protectiveness: “Where students become fragile is that they’ve had so much of their lives organized for them. They’re just not good at managing themselves.” And they’re socially awkward: “The dating concept is lost. No one is having relationships; they’re just hooking up.” If they don’t even talk to one another, how will they ask for consent?

As for Jack, if the campus board finds he committed sexual assault, he’ll likely be expelled from school. He’ll lose his scholarships and financial aid, and end up sitting at home, desperately trying to transfer to another school. But every transfer application asks: Have you ever been expelled from a college? If so, explain. Explain? How is he even supposed to understand?

That’s not Brett Sokolow’s problem, though. “I’m enjoying the position of having a Title IX training program in place even before the need for the coordinators was announced,” he says from his couch. “Registration has taken off.”

So the leviathan grows. When I was in college, back in the heady ’70s—when we battled hard for the Equal Rights Amendment, when Ms. magazine was still new—I and the women I knew got drunk a lot, and woke up in bed with guys we didn’t always like or know. They never asked us, “Can I put my finger inside you?” We never accused them of sexual assault. We were, all of us, learning about limits and needs and wants. There were a lot of teachable moments along the way.

Those days are gone. I guess Joe Biden would rather talk about epidemics of sexual assault than a dearth of common sense.

To learn about some of the sexual assault education providers colleges use, click here

Around The Web

Be respectful of our online community and contribute to an engaging conversation. We reserve the right to ban impersonators and remove comments that contain personal attacks, threats, or profanity, or are flat-out offensive. By posting here, you are permitting Philadelphia magazine and Metro Corp. to edit and republish your comment in all media.