Sex on campus: obtaining consent in the hookup culture

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As a lawyer, I have followed closely the campus sexual assault “epidemic” that has gathered much attention in recent years and find the abandonment of any concept of due process by campus tribunals appalling.  As detailed here, here, and here, universities living in mortal fear of the Department of Education’s Office of Civil Rights have clearly stacked the deck against the accused, resulting in severe consequences for some young men (because, let’s face it, the accused are almost always men) who engaged in what appeared to them to be consensual sexual activity.

But as a father of two teenage daughters, both of whom will go to college in the next few years, “due process” would be the furthest thing from my mind if I learned that either of my children had been mistreated sexually, whether or not the events constituted a crime.  In fact, if one of my daughters were to be victimized, I might seek a form of justice quite different from the kind that the gender equity activists have in mind.

So am I a hypocrite?  Shouldn’t I applaud campus sexual assault policies that leave any young man who might even think about touching one of my daughters quivering with fear, lest a ham-handed and quickly rebuffed “move” on the second date result in him being brought up on charges?

No.  And here is why: Notwithstanding the laudable goal of protecting women, the approach of many colleges to sexual assault reinforces the sexual culture that makes regret and emotional damage more likely, not less likely, for women.

Today colleges largely assume that a “hookup” culture of casual sex is the norm.  Rather than discourage such behavior, colleges seek only to regulate it and to prevent misconduct within that context.  So long as there is a consent form signed and notarized, a breathalyzer administered, and a condom involved (provided by the university, of course), everything is fine. Sleeping with that cute sophomore who never calls you again, or who “slays” your suitemate next weekend, does not (in and of itself) raise any gender equity issue, so “who are we to judge” beyond that?

Those of us who live outside the academic bubble, however, know that young men and women are, speaking generally, different when it comes to sex.  Young women, typically, see sex as an expression of intimacy and commitment, while young men see sex more in terms of pleasure. This proposition of gender difference with respect to sex is, of course, heresy to those in the academy who acknowledge no differences between the sexes.  Forced to choose a universal perspective, it is strangely the “male” perspective on sex – as an act of pleasure divorced from love or commitment — that forms the basis of most campus assault policies.

Two people who actually know each other and have some sort of committed relationship beyond sex don’t need to, and generally won’t, negotiate consent “every step of the way” as if they are negotiating a lease (I want cable included!).  But if sex is merely a recreational activity appropriate for any two (or more, God help me) people who met 30 minutes ago at a party, such negotiations are, in theory, necessary to establish the ground rules.

But attempts at precise negotiation are, inevitably, bound to fail (and fail often).  This is because when two people who barely know each other (and are likely under the influence of alcohol) attempt to engage sexually, the potential for misunderstanding, the potential for getting taken advantage of, and the potential for women to be victimized sexually (yes, I said women, because we’re talking generalities) increases exponentially, regardless of the boilerplate consent language handed out at freshman orientation.

The attempt to apply precise legal standards (e.g., affirmative consent, not just acquiescence) to sexual activity is folly, as anyone who has actually had sex knows.  Think of the last time you got lucky — did you seek and grant express verbal consent every step of the way, as Amherst College suggests you must if there is any doubt?  Probably not.  What protected you was not (I hope) the waiver you signed after the second glass of wine and the compliment.  It was likely the context in which the activity occurred.  That is, as an adult, your sexual partner was likely a spouse (how old fashioned!) or at least someone you knew well.

Sadly, to the modern university, suggesting that having sex with someone you just met might create problems or be inappropriate is “judgmental,” and, therefore, out of the question.  So universities unwittingly endorse the “horny teenage male” view of sex as a transactional, pleasure-seeking activity without any additional moral or emotional consequence, thus effectively sending the message that failure to participate in the hookup culture is abnormal. After all, why would anyone regret a one-night stand, so long as all the appropriate disclosures were made and consent given?

No college will explicitly endorse “hookup culture,” but colleges that assume that sex between virtual strangers will be commonplace and refuse to suggest that alternatives, such as dating and courtship, are preferable mating rituals contribute to the normalization of the hookup. Campus sexual assault policies, while well-intentioned, are merely efforts at mitigating the results of such a culture – where women are inevitably treated as commodities and conquests.  Although many have rightfully pointed to the injustices faced by some male students under extreme sexual misconduct policies, it is not clear to me that such policies, and their underlying presumptions, are any better for women.

In my own case, irrational fears aside, I am confident in my daughters’ judgment and ability to think for themselves once they get to college – but I think many campuses make it tougher, not easier, on young women with their current approach to sexual assault.

Robert N. Driscoll is a native of the Boston area who currently practices law in Washington, D.C. The views expressed in this column are his own and not those of his firm. Nor are they the views of his wife, daughters, or greyhounds.

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