Federalizing sex

On Sept. 28, California responded to an "epidemic" of campus rape by passing "affirmative consent" legislation. On Oct. 3, Gov. Andrew Cuomo (D) ordered New York's state universities to make affirmative consent the centerpiece of sexual assault guidelines. New Jersey, Connecticut, Massachusetts and others are considering similar measures.

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They shouldn't. Why? Affirmative consent embeds a double standard into society and law. The causal "threat of campus rape" is highly exaggerated. And affirmative consent is not offered as a solution but merely as prelude. The federal government has announced the next step: the "It's On Us" campaign.

But, first, why reject the first step?

A double standard

Under "affirmative consent," whoever initiates sexual contact is responsible for obtaining explicit and ongoing consent for every act of progressing intimacy. Explicit consent must be serially rendered for each kiss, touch, etc. Advocates scornfully call for critics to use common sense in interpretion but, with any policy that drastically impacts lives, it is prudent to heed literal wording. If the wording is not meant literally, then it should be changed.

The policy embeds a double standard. It establishes two categories of adults: those on campus and those not. Adult students are assumed to need more official protection during sexual contact than other adults.

It also discriminates against males who typically initiate sex. In response to 2011 demands by the Department of Education (DOE) and a threat to cut federal funding, university hearings stripped male students who were accused of sexual assault of due process rights, such as facing an accuser. The presumption of innocence was de facto reversed and accusations deemed true until proven otherwise. Although campus hearings cannot impose criminal penalties, they can ruin lives and prompt police investigations.

The threat is greatly exaggerated

The Bureau of Justice Statistics' National Crime Victimization Survey (NCVS) claims the rate of sexual assault fell by more than 50 percent from 2008 to 2012. This is America's most reliable source of crime data. Because it measures crimes both reported and not, the NCVS avoids the accusation that its data excludes non-reporting victims.

The NCVS states that about 350,000 sexual assaults occurred in 2012. Affirmative consent advocates claim much higher rates on campus. One in five female students is the commonly offered statistic. According to the National Center for Education Statistics, "about 12.0 million females" will be on campus in fall 2014. That means some 2.4 million females will be sexual victims over the next few years. Indeed, many campuses indicate a rise in reported assaults.

Why such a discrepancy? Campuses embrace a broad and vague definition of sexual assault; for example, alcohol or drug consumption nullifies apparent consent and "offensive" language is included; no sanction is imposed on false reports.

The next federal step in affirmative consent

Federal impetus is behind affirmative consent and pushing. The 2011 DOE letter threatening the removal of federal funds was pivotal, but other measures ensued. In January 2014, the White House Council on Women and Girls published a report entitled "Rape and Sexual Assault: A Renewed Call to Action," which repeated the one in five figure. A White House Task Force to Protect Students from Sexual Assault was also established. In Congress, the Campus Accountability and Safety Act, S. 2692 and H.R. 5354, seeks to change the ground rules on sexual assault investigations.

And, now, the "It's On Us" campaign expands the scope of affirmative consent. The first sentence of the White House fact sheet states "[T]he President and Vice President have made it a priority to root out sexual violence wherever it exists," with a focus on campuses. The goal: "to fundamentally shift the way we think about sexual assault, by inspiring everyone to see it as their responsibility to do something."

Third parties are urged to act against anything they view as sexual assault or its promotion, presumably including bad jokes. Males are targeted. The fact sheet states the goal of "engaging men," "getting men involved," and "motivating college men." It declares, "Most men are not comfortable with violence against women, but often don't speak out because they believe that other men accept this behavior."

Interestingly, the "It's On Us" pledge and surrounding text says nothing about campuses, but could apply to any situation. "This pledge is a personal commitment to help keep women and men safe from sexual assault. It is a promise not to be a bystander to the problem, but to be a part of the solution." How long before affirmative consent attempts to leap into mainstream culture?

McElroy is a research fellow at the Independent Institute.

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