Guilty until proven innocent

Christian conservatives on the far right from the late Baptist minister Jerry Falwell to Sarah Palin, former Governor of Alaska, have been working to curtail sex on college campuses since the 1960s, with few results. But the liberal, feminist campaign against sexual assault has had more of the staunching effect on college students’ sexual behavior.

For decades, the Christian right has preached biblical admonitions condemning premarital sex. Purity rings, exhortations about STDs and a push for abstinence have long been conservatives’ siren calls to hormone-laden college students. It does not appear that this group has been influenced by conservatives’ message.

The Obama administration, along with women’s rights organizations and anti-patriarchal groups, have been a vocal force against campus sexual assaults. These groups say that 20 percentof female college students have been sexually assaulted. They demand that colleges take measures to end these attacks. The Obama administrations has ordered colleges to beef up their policies for punishing sexual misconduct or risk losing federal funding. Under Title IX, colleges have been compelled by the Obama administration to adopt adjudication processes that are meant to replace the criminal justice system. Under this new process, schools are required to use a “preponderance of evidence” standard to determine the alleged guilt of an offender in cases of sexual assault. This standard of proof is much easier to reach than the “beyond a reasonable doubt” standard, the highest standard of proof and the one used in criminal cases. The University resisted to lower its own standard from "clear and persuasive" until last month, after it was charged with violating Title IX and agreed to accept the preponderance of evidence standard. Andrew Miltenberg, a lawyer for several male students who have been accused of sexual assault, stated that “schools [are] treating young men as presumptively guilty, while bowing to pressure from the national dialogue.” Under these new University rules, men are guilty until proven innocent.

Sexual assault and rape are wrong. Perpetrators should be punished. But the adjudication process should be fair for the accused as well as the victims.

What is happening now is that many male students who thumbed their noses at the Christian right’s warnings of sin, disease, pregnancy and eternal damnation are now unsure and cowed about sexual contact with females because of these new University policies backed by the federal government. Normal, consensual, heterosexual sex on campus has become dangerous for males. The rule used to be “no means no.” That has changed. The new rule is “yes means yes.” The burden of “affirmative consent” has been placed solely on the male. A male must get consent from the female at every stage of their sexual encounter. However, even if he does get consent, he is still at risk if it is determined that the female was under the influence of alcohol or drugs. Even if he himself is intoxicated, it is now his responsibility to assess the intoxication of his partner. The female has none of this responsibility. If a female says that she was raped or assaulted the next day, the male student can face expulsion, even if the sex was consensual and not forced.

At Occidental College–according to the Foundation for Individual Rights in Education, a legal advocacy group representing a male student accused of sexual assault – a female student texted a male friend and asked him if he wanted to hook up. Both of them had been drinking. She next texted her female friends and told them she had the intention of having sex with him. Then, she texted the man and asked him if he had condoms. She met him. She willingly had sex. The next day, she accused him of rape. The male student was expelled from Occidental College. He was charged with violating Occidental’s “written incapacitation standard,” which says a female cannot make an informed and rational decision to engage in sexual activity if “she lacks conscious knowledge of the nature of the act or is physically helpless.” The police investigation determined that “[w]itnesses were interviewed and agreed that the victim and suspect were both drunk[.] [H]owever, ... they were both willing participants exercising bad judgment[.] … It would be reasonable for [the male student] to conclude based on their communications and [the accuser’s] actions that, even though she was intoxicated, she could still exercise reasonable judgment.” This decision ended police involvement in the case. However, Occidental undertook its own investigation and found the male student “responsible” under the preponderance of evidence standard (a mere 50.01% certainty). FIRE Senior Vice President Robert Shibley said, “By classifying sex while drunk as rape and stripping students of due process protections, Occidental and the federal government have rendered vast numbers of students unwitting rapists — and ensured that being accused is nearly the same thing as being found guilty.”

These cases have had a chilling effect on campus sexual behavior. Colleges need to take the protection of females on campus seriously. Colleges need to squash any form of rape culture. But males need to protect themselves as well. Will males begin to ask for written consent from potential female partners? Will they videotape this consent with a time stamp? Will male students ask females to take a breathalyzer test to ensure they are not incapacitated before having sex?

Jerry Falwell abhorred the sexual revolution of the 1960s. As he looks down from the Big House in the sky at current University sexual policies of 2014, he is probably smiling.

Coy Ozias is a freshman fromChristiansburg, Va. He can be reached atcozias@princeton.edu.