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Campuses must distinguish between assault and youthful bad judgment

Some schools define sexual assault so broadly, it takes in everything from grinding to rape at knife point
Campus sex cases: We do our children no favors by making sexual stupidity a capital offense

I really didn't want to write another column that hinges on the notion of a war between the genders.

But our front-page story Sunday — on legal challenges by students punished for campus sexual assaults — raises such provocative questions, I just couldn't help myself.

University officials around the country are ratcheting up efforts to protect female students by reining in sexual misconduct. But as Times reporter Teresa Watanabe explained, that campaign is raising concern about the rights of the accused.

Young women have long complained that their reports of sexual violations weren't taken seriously enough, that campus investigations were half-hearted and discipline was lax.

Now men are claiming that the adjudication process doesn't give them a fair shot; what they contend are consensual sex acts their universities consider assaults.

Our story — with details from cases at Vassar, Duke, the University of Michigan and Occidental College — highlights the combustible mix of sex and alcohol, and illustrates colleges' clumsy efforts to regulate the messy tangle of student sexual encounters.

What do you do when two young people — both drunk and amorous — have sex that neither completely remembers, both belatedly regret and each sees through a different lens the morning after?

In my day, we called that a lesson; you might cry privately, commiserate with friends, and then life goes on.

Today, we call that a crime; lives unravel, lawyers intervene and years of therapy ensue.

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The attention to sexual assaults on campus is overdue. It took a surge of complaints by female students, fed up with being ignored, to get federal officials to pressure universities to protect the victims of sexual violence and kick rapists off campus.

But the broad-brush measures being established now may ultimately create as many problems as they solve.

Some schools define sexual assault so broadly, the term encompasses everything from grinding on the dance floor to rape at knife point. Many rely for resolving misconduct complaints on untrained advisors and a process tilted toward the presumption of guilt.

And rules that make sense in criminal courts — where you can't use being drunk as a defense for breaking the law — play out differently on campuses where binge drinking and sexual hookups are commonplace.

Most of the focus has been on ensuring that sexual encounters are consensual. The California Legislature is poised to approve a measure that sets parameters for that: State colleges would have to adopt policies that require "an affirmative, unambiguous and conscious decision by each party to engage in mutually agreed upon sexual activity."

But the details our reporter unearthed show how murky that concept can be.

The Occidental case involved two freshman students — 17 and 18 — who had sex last fall while both were very drunk.

According to official reports of the investigation, the 17-year-old visited a classmate's dorm room, took off her shirt while dancing and made out with the young man. Then she left and returned later, after texting to make sure he had a condom. Her friends tried, several times that night, to walk her back to her room. But she kept texting and sneaking out again.

The next day, she couldn't remember if she and the young man had intercourse. A week later, she made a "sexual misconduct" complaint with university officials after she was encouraged by an activist professor who helped create the Occidental Sexual Assault Coalition.

No criminal charges were filed; the Los Angeles County district attorney's office concluded both were "willing participants exercising bad judgment."

Occidental concluded essentially the same thing. Its investigative report acknowledged that the young woman "engaged in conduct and made statements that would indicate she consented to sexual intercourse." But she "did not have the capacity to appreciate the nature and quality of the act" because she was too drunk.

The young man, the report said, was too drunk to recognize that she was too drunk to consent — but that didn't keep him from being expelled by Occidental.

In other words, a young man is accountable for his actions when he's drunk, but a young woman is not.

Is that really the message that we want to send our daughters?

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It's tough to have a productive discussion about a topic so freighted with conflicting perspectives and agendas.

We ought to be doing more to keep young women safe from predators on campus. Young men need to understand that "no means no," and drunk does not equal consent.

But if we're warning our sons that it's unsafe to get drunk and hook up, why do we think it "blames the victim" if we give that message to our daughters?

The young woman in this case said her life has been upended; she has post-traumatic stress disorder from an hour she can't even remember. The young man, an A student in high school, can't get another college to look past that one drunken tryst.

There's a difference between rape and a regrettable choice. I'm not sure anymore where that line falls. But one thing hasn't changed since I was a university student, trying to navigate the sexual trade winds:

College is about growing up — and growing up means making mistakes, realizing you can recover, setting your own boundaries and learning to be accountable for your choices.

We do our children no favors by making sexual stupidity a capital offense. It doesn't educate men or rescue women; it just turns naive and awkward college students into perpetrators and victims.

Twitter: @SandyBanksLAT

Copyright © 2014, Los Angeles Times
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