Everyone would agree that killing someone is worse than punching someone. And everyone would also agree that killing should be punished more harshly than punching. This is not controversial. Yet this common-sense principle of proportionality is ignored every day on college campuses nationwide.
In recent years, colleges have become heavily involved in the business of resolving sexual assault cases. They used to leave it to the police: If a man on campus raped a woman on campus, that was an issue for the cops, not the school.
Granted, this system was far from perfect. If a crime took place but the police couldn't make a case, a woman would have to see her rapist on campus, hindering her education. In a well-intentioned attempt to correct this problem, the Department of Education under President Obama did what government so often does: It made the situation much worse.
It now threatens schools with revocation of federal funding, heavy fines or even expensive
investigations if they don't kick out assailants. As a result, risk-adverse administrators and lawyers resolve allegations in-house, and, in the process, cut corners in favor of women bringing charges and against the accused.
At the same time, our notion of what counts as sexual assault has also changed. It used to be that by "rape," we meant a stranger jumping out of the woods with a knife. Outdated, sexist laws made it difficult or impossible to find someone guilty of sexually assaulting a woman who'd had several partners or who dressed provocatively.
For good reason, rape has been properly redefined in a much broader way: as sex with someone who hasn't consented. "Sexual assault" now covers a range of experiences, from that stranger in the woods to an unwanted touch at a party.
There's nothing wrong with colleges adopting such broad definitions — at least not in theory. What's problematic is that they haven't adopted a correspondingly flexible approach to punishment.
Here's one example of a sexual assault, at least as defined on many campuses: A man and a woman meet at a party and go back to her room. They start to kiss, and undress each other. They perform oral sex on each other. The man, thinking that the woman wants to go to the next level, begins to have sex with her. She tells him to stop, and he does.
This isn't a hypothetical; we've handled many cases stemming from a similar set of facts.
What's the appropriate punishment for the man's behavior? Should it be the same as if he kept going after she told him to stop? Should it be the same as for a man who drugs a woman so that he can have sex with her?
Virtually every college we've dealt with seems to think the answer is yes, it should be the same. As long as some form of sex occurred — loosely defined — either you're guilty of sexual assault, or you're not. There are no degrees of fault. And if you're found guilty, at most schools the punishment is expulsion or, if you're lucky, suspension.
Some schools even have "mandatory minimum" sentences, in which any suspension imposed must be at least one year or until the victim graduates, whichever is greater. If the victim is a freshman, that means expulsion for the accused in all but name.
Time and time again we have seen young men expelled or suspended following alcohol-soaked, highly ambiguous sexual encounters that didn't involve force or the word "no." We have seen errors of judgment derail a promising future because, in the world of campus sexual assault, all punishments go to 11.
The idea that all sexual assaults are equal is almost axiomatic among those asking for harsh punishments. And, in a vacuous, tautological sense, the proposition "rape is rape" is true. But it's also true that "violence is violence," yet we don't think that manslaughter should be punished as severely as murder.
What schools need — and it may be that the Department of Education is the only entity that can give it to them — is a sliding scale that would adjust for the seriousness of a sexual assault.
As in the legal system, ambiguous cases like the one we describe above could come with a different description on a student's transcript or academic records — one that doesn't conjure images of a man lurking in the shadows with a blade or spiking a woman's drink and dragging her upstairs. Someone found responsible in such a case should be punished less severely too — perhaps with probation, not expulsion. If someone is misreading cues but acting in good faith, the remedy should be education, not the end of his educational career. College is supposed to be about learning, after all.
Colleges can still recognize that all sexual assaults are bad but, at the same time, acknowledge that some are worse than others. Some are more morally blameworthy, some are more violent, and some cause greater lasting harm (such as physical injuries or pictures on the Internet).
If proportionality is good enough for criminal courts — and it has been for hundreds of years — surely it is good enough for college campuses.
Matt Kaiser and Justin Dillon are partners at Kaiser, LeGrand & Dillon in Washington and have represented dozens of students nationwide in campus sexual assault cases.