The New Rules of College Sex

Jack and Diane are at a party at their college. It’s September of their freshman year. They’re still excited about being away from home, on their own for the first time. They don’t know each other, but they’ve noticed one another, at orientation and in the dining hall.

Because they’re underage, they can’t drink at this party, but before she arrived, Diane “pre-gamed,” as the girls in her dorm call it—downing mixed drinks, doing gummy-worm and Jell-O shots. Jack had a few beers.

The liquor’s gone to Diane’s head. On the dance floor, she makes eye contact with Jack. He maneuvers his way toward her. She grabs him by the crotch, then whirls around and pushes against him, letting him grind away. Jack can’t believe it—she’s so pretty. She smells so good.

“I can’t hear myself think in here, it’s so loud!” he shouts into her ear.

She smiles at him. “What?”

“Too loud!” He takes her hand and leads her outside, into the autumn night. She looks at him expectantly. He puts his arms around her, pulling her close, and begins to kiss her. She drapes against him. He touches her breast, and when she doesn’t protest, does it again. He moves his hands to her rear, cupping her buttocks. She kisses him back, frantically eager. He reaches underneath her dress.

Jack doesn’t know it, but he’s just created what the Department of Education calls a “hostile environment” for women on his campus—a violation of Title IX for which his college could lose all federal funding. Should Diane press sexual assault charges against him with the school, he’ll be tried in a judicial hearing that fails to guarantee him the most basic American legal rights—the right to counsel, the right to confront his accuser, the right not to be convicted unless found guilty beyond a reasonable doubt. He could well be expelled, and have a record that will hound him should he try to get into another school.

And here he thought it was his lucky night.

BACK IN APRIL, Vice President Joe Biden stood in front of 600 students at the University of New Hampshire and spoke out against an epidemic of sexual assaults on college campuses, garnering national publicity with his cri de coeur: “No matter what a girl does, no matter how she’s dressed, no matter how much she’s had to drink, it’s never, never, never, never, never okay to touch her without her consent.” The statistic Biden cited—the U.S. Justice Department’s finding that one in five college women are victims of sexual assault—is bound to give anxious parents pause: For this they’re paying $50,000 a year?

Biden’s speech was meant to focus attention on what U.S. Assistant Secretary of Education Russlynn Ali calls “a terrible, alarming trend” of campus sexual violence. Ali had just disseminated a 19-page “Dear Colleague” letter to all colleges and universities that receive federal aid—which is all but two in the country—detailing how they’re required to combat that trend. Her letter came in the wake of a Title IX complaint lodged in March by 16 students and alumni at Yale, asserting that the university failed to eliminate a “hostile sexual environment” perpetuated by, among other things, an e-mailed “Preseason Scouting Report” on 53 freshman women that ranked how many beers a male student would require before having sex with them, and fraternity pledges who shouted “No means yes! Yes means anal!” outside a dorm.

While women’s rights advocates have lauded Ali for finally putting teeth in Title IX—the 1972 federal law that prohibits colleges from discriminating on the basis of gender—a quieter groundswell of protest has charged her with trampling on the rights of young men accused of sexual assault in her rush to protect victims. College deans say she’s stripped their ability to deal with delicate he-said-she-said cases in fairer, more nuanced ways. Other administrators warn that even with the guidelines, campus hearing boards are ill-equipped to investigate assaults and rapes—all in the midst of another epidemic, binge drinking. Peter F. Lake, director of the Center for Excellence in Higher Education Law and Policy at Stetson University, told the Chronicle of Higher Education, “We’ve been lured into doing something in a criminal justice model that the criminal justice system itself hasn’t been able to deal with.”

But beyond the fundamental questions of fairness, Russlynn Ali’s guidelines impose a paralyzing “nanny state” on college campuses here in Philadelphia and across the country. At precisely the time in their lives when young men and women should be exploring what sexuality means, the new rules choke off their freedom, limit their choices, and encourage the canard that all males are unrepentant predators. What’s more, they position women as helpless victims who require bureaucratic protection from those males—victims with no responsibility for their own behavior.

Heaven help those women when they graduate.

IF YOU’RE CURIOUS as to how student sexual misconduct became a federal civil-rights liability for colleges, the man with the answer is perched in shorts and bare feet on a big, comfy sofa in the vault-ceilinged living room of his stone home in Malvern. Brett Sokolow, a ’97 Villanova Law grad, is founder of the National Center for Higher Education Risk Management, or NCHERM (pronounced “en-kerm”). For more than a decade, the genial 39-year-old has been warning colleges and -universities—he’s of counsel to more than 20, and has advised thousands—that the day was coming when courts would allow Title IX claims against them for sexual assaults. “The ‘Dear Colleague’ letter was one of the most important moments of my professional life,” he says.

Sokolow’s interest in campus safety stems from his sophomore year at the College of William & Mary, when he began dating a fellow student who’d been sexually assaulted: “She became an activist, and I became one as well.” He thought then that Title IX should have provided her redress, but “everybody said, ‘Title IX is just athletics.’” Actually, there’s no mention of sports in the law, which is enforced by the Education Department’s Office for Civil Rights (OCR). (Disclosure: One of my relatives has been a victim of rape; another was once sanctioned by a college for sexual misconduct.)

Sokolow has built a business out of advising colleges on how to stay one step ahead of all sorts of legal liability, using hypothetical scenarios like the one in this article starring Jack and Diane. In a series of “white papers” for his clients, he’s traced how courts have been reinterpreting the laws on sexual harassment and assault to allow for Title IX complaints. For example, a finding of force was once necessary to prove rape. Gradually, the question instead became one of consent. And according to NCHERM’s “zero tolerance” model sexual assault policy, which many colleges employ, the burden is on “the initiator of sexual behavior” to obtain consent.