A Title IX case at the University of Cincinnati—rife with legal, anatomical, and emotional improbabilities—illustrates the potential excesses of policing sex on campus.
Is it possible for two people to simultaneously sexually assault each other? This is the question—rife with legal, anatomical, and emotional improbabilities—to which the University of Cincinnati now addresses itself, and with some urgency, as the institution and three of its employees are currently being sued over an encounter that was sexual for a brief moment, but that just as quickly entered the realm of eternal return. The one important thing you need to know about the case is that according to the lawsuit, a woman has been indefinitely suspended from college because she let a man touch her vagina. What kind of sexually repressive madness could have allowed for this to happen? Answer that question and you will go a long way toward answering the question, “What the hell is happening on American college campuses?”
The substantive facts of the case come to us only through a lawsuit, one that has thus far implicated everything from Title IX, the Sixth Circuit Court of Appeals, and the United States Constitution to “slut shaming” and good old-fashioned horniness. But not super horniness, because—as with many high profile cases involving the infinitely expandable concept of “college sexual assault”—the actual encounter exists as merest prologue to the massive novel of ideas that followed it.
The event in précis, as summarized by Robby Soave of Reason magazine:
“Male and female student have a drunken hookup. He wakes up, terrified she’s going to file a sexual misconduct complaint, so he goes to the Title IX office and beats her to the punch. She is found guilty and suspended.”
The image that this conjured—of a couple waking up in the fetid bed of blackout sex, coming to the hideous realization of what happened and then lacing up their running shoes for a mad race across campus to the Torquemada of Title IX—is not just amusing, but offers a potentially useful precedent to the nation’s college men. The race is not always to the swift, but the functionaries of the college sex panic have an obdurate habit of determining that the victim of a blearily remembered amorous encounter is the person who decides to report it, with all ties broken by the one who reports it first.
It is Jane Roe’s good fortune to have as her attorney Josh Engel, whose practice is largely centered on suing universities—including, on five occasions, the University of Cincinnati—on behalf of plaintiffs who faced discipline for sexual misconduct by campus disciplinary proceedings—all of whom, until now have been men. In the lawsuit, he cites a recent and underreported ruling from the Sixth Circuit, which has significant relevance to the large number of campus sexual-assault proceedings involving two drunk students. Doe vs. Miami University found that a school acts in a discriminatory manner when it finds that both a male and a female student are intoxicated and engage in sexual activity yet chooses only to discipline one of the students.* As Engel told me, “From a constitutional standpoint a public school violates the equal-protection rights of their students when there is no rational basis to differentiate between male and female students. The court found that even if only one student makes a report, if the school possesses knowledge that both were intoxicated, “the school has an affirmative obligation to investigate both students for misconduct without waiting for a ‘report,’” Engel said.
In other words—college students and administrators take note—the days of blaming one person (almost always the man) for a no-harm, no foul, mutually drunken hook up may be coming to an end. It was a ridiculous standard, one that that infantilized college women, demonized male sexuality, and was responsible for harsh punishment meted out to an unknown number of college students, almost all of them male. It trivialized something grave: sex crime. And because it poured all of these experiences through an interpretive system that forced women into the role of passive victims and men in that of aggressive predators, it has helped stoke understandable resentment among young men on campuses across the country.
SOURCE: CAITLIN FLANAGAN