I stumbled upon an assertion posited with such in-your-face buffoonery that it encapsulates the childishness of the entire current public discourse about sexual assault. Abbey Francis, Class of 2014 and Opinions Editor of the Wesleyan Argus, posited the following breathtaking assertion, in print, no less: “One partner seductively convincing another to have sex might indeed be romantic—but if the person being convinced instead feels coerced, it’s sexual assault.” See here: http://wesleyanargus.com/2011/09/15/the-new-rules-reexamined/

Read it again: if she “feels” coerced, it’s sexual assault.

You see, for too many gender warriors who happily spew their uninformed opinions all over us, sexual assault is not a crime that needs to be defined with sufficient due process specificity to put the public on notice about the conduct it proscribes, it is a 1970s mood ring, a free floating clearinghouse designed to redress any sexual encounter deemed unsatisfactory at the caprice and whim of a self-anointed victim.

But, of course, what else should we expect? We are stranded in an era where gross distortions of the truth about rape–from “women don’t lie about rape,” to “one-in-four college women are raped” (sometimes it’s “one-in-four Freshman women before Thanksgiving” or “one-in-four women by the time they enter college,” or” one-in-three women” or “one-in-five women” or “one-in-six women” or any number of other manifestations of this canard), to “only two percent of rape claims are false”–have become the accepted narrative. Where “take back the night” participants stomp about shouting angry, puerile slogans into a bullhorn. And where young men shakily “walk a mile in her shoes,” thinking they are actually making a difference about rape instead of what they’re really doing, helping the sexual grievance industry justify its existence.

Diatribes replace dialogue. Ranting at one another replaces reasoning together. Lashing out replaces listening. And anyone who dares to take issue with any of it is deemed not just backward — in a good old-fashioned progressive ”guns and religion” sense – but evil, too.  Few things engender as much anger as telling the truth about rape. To quote Ronald Reagan talking about Jimmy Carter, “I sometimes think he’s like the witch doctor that gets mad when a good doctor comes along with a cure that’ll work.”

And it isn’t just extreme leftists. The other side that insists all rape claims are lies is scarcely any more intelligent, it’s just not as smug about it. (And, frankly, it’s voice has been so marginalized in the public discourse, it’s not worth giving it equal time in this post.)

When it comes to rape, it is difficult enough to maintain that delicate balance between (1) punishing the guilty, and (2) insuring the innocent aren’t punished with them, without having to entertain the idiocy of extremists on either end who would insist only one half of that balance is at all pertinent. But idiocy is the hallmark of the public discourse on rape, and it’s time to elevate the dialogue to an adult level. 

Let’s focus on two of the more complicated areas where there needs to be an adult discussion.

Sexual Coercion

Colleges are branding certain behavior that has never been classified as criminal as “sexual misconduct” in an effort to construct a progressive, supposedly female-friendly, sexual utopia. Perhaps the most extreme manifestation of this trend is found in the effort to punish males for engaging in consensual sexual behavior obtained by emotional or verbal “pressuring” (e.g., cajoling, coaxing, or nagging). Such conduct is punished even though the woman assented to have sex, was not physically threatened, and had reasonable alternatives to engaging in sex but chose not to exercise them. Despite the fact that the policies are gender neutral, men have a monopoly on being punished for these purported offenses.

In the Department of Education’s infamous April 4 “Dear Colleague” letter addressed to American institutions of higher learning, the Obama administration made clear that “sexual coercion” is a form of sexual harassment covered under Title IX.

What’s wrong with making sexual coercion an offense?

First, by punishing men for sex procured by emotional and verbal pressuring, colleges are lumping into the definition of sexual assault acts long considered by law to be consensual. Men who do what society has been telling them to do for decades — ask for sex — are punished for asking in a boorish, immature, selfish, or annoying manner.  And, no, I am not condoning such behavior, I’m merely asserting that, like many things I find morally reprehensible, it should not be made a punishable offense.

The closest concept in the common law to sexual coercion is duress, a concept employed to invalidate contracts. Duress need not involve a loaded gun pointed at someone’s head with a threat that “either your brains or your signature will be on the contract” per The Godfather. A contract is voidable for duress if a victim’s manifestation of assent has been induced by an improper threat, and if the victim has no reasonable alternative but to agree. At the very least, that last part — the “no reasonable alternative” – is missing from sexual coercion.

The only pertinent inquiry should be whether the woman manifested consent to engage in the sex act when she had a reasonable alternative not to. Once such consent is found, Big Brother/Sister should stay out of the bedroom. In the absence of improper threats, to try to undo her manifested consent by inquiring into her subjective motivations is unworkable, and flat-out wrong on a multitude of levels. In no rational world does nagging rise to the level of an improper threat or sexual misconduct.

Second, sexual coercion policies are so vague they do not pass Constitutional muster. Our criminal law should not be a guessing game. A valid criminal statute clearly puts the public on notice as to the conduct that is forbidden. This is a component of due process. “The test is whether the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.” Jordan v. DeGeorge, 341 U.S. 223 (1951). A law that does not meet that standard is unconstitutionally vague.

In the realm of sexual coercion, “seduction,” whatever that means, is OK, but, apparently, too much “seduction” is bad because it can become “coercion,” which even the purported experts have a difficult time defining. The guy can ask for sex, but he can’t ask too much (and just how much is too much?) because that would cross some indistinct line that’s about as clear as a dense fog in Maine. When does asking become nagging? When does “seduction” turn into “coercion”? There is no mistaking midnight for noon, but at what point does twilight become night? To say that the contours are fuzzy is an understatement. No one — no one — can be sure at what point the line is crossed.

As a law, it is wholly unworkable; as a policy, it accomplishes the seemingly impossible task of insulting both genders at once. It insults men by telling them they are akin to rapists even when they ask and get permission for sex before proceeding because they asked too much, and it insults women by telling them they are not free moral agents capable of saying “yes” when they want sex, and “no” when they don’t.  That is political correctness run amok, a policy bordering on pathology.  

Preponderance of the Evidence

Despite an avalanche of well-founded concerns, colleges are now required by law to adjudicate sexual assault and similar claims — but no other offenses — using the lowest standard of proof, preponderance of the evidence.

If a student is accused of stealing a small sum of money from another student, he or she likely will have a disciplinary claim adjudicated under a clear and convincing evidence standard (which is higher than a preponderance of the evidence standard). If a student is accused of the far more serious crime of rape, the claim against him must be adjudicated under a preponderance of the evidence standard, the lowest standard of proof in our jurisprudence.  In what world does that double-standard make sense?

To put it plainly: a college disciplinary board needs only to be 50.0001% certain that the accused committed the offense of sexual assault in order to expel him. If someone told you that a parachute was only 50.0001% certain to open, would you jump? Of course not.  Yet, the Obama administration thinks that an almost 50% level of uncertainty is acceptable when it comes to our sons and sex offenses on campus.

For the sexual grievance industry, the April 4 directive was an almost unparalleled triumph.  Its members believe that the absence of hard evidence in many rape claims makes it too difficult to punish rapists and, thus, justifies the lower standard of proof. They have it backwards. The absence of hard evidence to prove any crime is a sound reason to be wary about convicting persons accused of it, not a valid justification to make it easier to convict even the innocent with the guilty.

As Cynthia Bell pointed out: “Lowering the burden of proof in these cases puts more college students at risk of being wrongly found guilty and having their reputations permanently damaged. How many innocents does [the Department of Education] want to see mistakenly expelled as rapists in the name of getting tough on crime?” 

Conclusion

The older I get, and the more I write False Rape Society, the less sure I am about anything. Do I think I have a monopoly on the truth about these issues? Nope, I know I don’t. What I’d really like to see is a serious dialogue about them, not being smugly dismissed as a misogynist by angry people who don’t bother to take the time to actually inform themselves about the subject.

What is lost in the entire discourse is any recognition that the above issues, and many related issues, are both complex and serious matters that are ill-served by screeching, or by shrill pandering to powerful interest groups. I am not sure about many things, but I am sure about this: basing a public policy on the desire to punish the guilty without protecting the innocent from being punished with them is not just childish and mean-spirited, it is morally grotesque.