Codifying Consent, Ctd

Andrew Sullivan —  Oct 16 2014 @ 11:58am

I haven’t weighed into the debate over California’s sexual consent law or the new regulations in many colleges, including my alma mater, Harvard, that defines any sex without vocalized continuous consent as sexual assault or rape. One reason is my lack of any real experience of male-female sex where the power dynamics can often be very different from gay sex. But what does concern me a great deal is the lack of any due process for the accused in these unfortunate and often deeply contentious circumstances. Mercifully, some of the faculty at Harvard – specifically the law school – have now risen up against what look to me like kangaroo courts, designed to instill fear into one gender alone. In an open letter, published in the Boston Globe, the law profs write:

Harvard has adopted procedures for deciding cases of alleged sexual misconduct which lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation. Here our concerns include but are not limited to the following:

■ The absence of any adequate opportunity to discover the facts charged and to confront witnesses and present a defense at an adversary hearing.

■ The lodging of the functions of investigation, prosecution, fact-finding, and appellate review in one office, and the fact that that office is itself a Title IX compliance office rather than an entity that could be considered structurally impartial.

■ The failure to ensure adequate representation for the accused, particularly for students unable to afford representation.

Ezra Klein – in a remarkable column that we featured yesterday – actually defends the lack of due process as a positive aspect of the new regulations, because their inherent bias against accused men will create a climate of fear that is necessary to curtail male sexual violence and assault:

To work, “Yes Means Yes” needs to create a world where men are afraid … Critics worry that colleges will fill with cases in which campus boards convict young men (and, occasionally, young women) of sexual assault for genuinely ambiguous situations. Sadly, that’s necessary for the law’s success. It’s those cases — particularly the ones that feel genuinely unclear and maybe even unfair, the ones that become lore in frats and cautionary tales that fathers e-mail to their sons — that will convince men that they better Be Pretty Damn Sure.

Jon Chait and Charles Cooke both note the profound illiberalism here – and it’s enabled by the pomo gender ideologues who now control most discussion of sex and sexual identity in the academy. But what’s also impossible to ignore is how the social left is now trying to micro-manage what goes on in the bedroom with almost as much assiduity as the social right – and to do so in order to target one gender alone.

When all men are regarded as potential rapists, and when you have bought into the argument that the patriarchy is so entrenched that only radically illiberal procedures to punish, stigmatize and shame them will suffice, you have embraced a new Puritanism almost as troubling as the old. Play out this scenario: If a judicial process were set up that assumed that all women reporting sexual assault and rape were liars until somehow proven truthful, there would be an outcry. But if an identical judicial process is established that assumes all men accused of sexual assault and rape are guilty until proven otherwise – with no due process allowed – that is, apparently, a progressive move.

And it may well be a progressive move; but it sure isn’t a liberal or fair one. This does not mean that I don’t take the issue of sexual assault and rape seriously. In fact, it’s precisely because I do take it seriously that I’d support laws and regulations that allow real justice to be done, in which the accused have some basic right to defend themselves. The rest is a function of a leftist academic culture in which men are somehow inherently a problem; and almost anything is justified to make sure their “privilege is checked” and their gender stigmatized. At some point, the sexism inherent in this needs to be confronted as well.