Campuses must distinguish between assault and youthful bad judgment

I really didn't want to write another column that hinges on the notion of a war between the genders.

But our front-page story Sunday — on legal challenges by students punished for campus sexual assaults — raises such provocative questions, I just couldn't help myself.

University officials around the country are ratcheting up efforts to protect female students by reining in sexual misconduct. But as Times reporter Teresa Watanabe explained, that campaign is raising concern about the rights of the accused.

Young women have long complained that their reports of sexual violations weren't taken seriously enough, that campus investigations were half-hearted and discipline was lax.

Now men are claiming that the adjudication process doesn't give them a fair shot; what they contend are consensual sex acts their universities consider assaults.

Our story — with details from cases at Vassar, Duke, the University of Michigan and Occidental College — highlights the combustible mix of sex and alcohol, and illustrates colleges' clumsy efforts to regulate the messy tangle of student sexual encounters.

What do you do when two young people — both drunk and amorous — have sex that neither completely remembers, both belatedly regret and each sees through a different lens the morning after?

In my day, we called that a lesson; you might cry privately, commiserate with friends, and then life goes on.

Today, we call that a crime; lives unravel, lawyers intervene and years of therapy ensue.

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The attention to sexual assaults on campus is overdue. It took a surge of complaints by female students, fed up with being ignored, to get federal officials to pressure universities to protect the victims of sexual violence and kick rapists off campus.

But the broad-brush measures being established now may ultimately create as many problems as they solve.

Some schools define sexual assault so broadly, the term encompasses everything from grinding on the dance floor to rape at knife point. Many rely for resolving misconduct complaints on untrained advisors and a process tilted toward the presumption of guilt.

And rules that make sense in criminal courts — where you can't use being drunk as a defense for breaking the law — play out differently on campuses where binge drinking and sexual hookups are commonplace.

Most of the focus has been on ensuring that sexual encounters are consensual. The California Legislature is poised to approve a measure that sets parameters for that: State colleges would have to adopt policies that require "an affirmative, unambiguous and conscious decision by each party to engage in mutually agreed upon sexual activity."

But the details our reporter unearthed show how murky that concept can be.

The Occidental case involved two freshman students — 17 and 18 — who had sex last fall while both were very drunk.

According to official reports of the investigation, the 17-year-old visited a classmate's dorm room, took off her shirt while dancing and made out with the young man. Then she left and returned later, after texting to make sure he had a condom. Her friends tried, several times that night, to walk her back to her room. But she kept texting and sneaking out again.

The next day, she couldn't remember if she and the young man had intercourse. A week later, she made a "sexual misconduct" complaint with university officials after she was encouraged by an activist professor who helped create the Occidental Sexual Assault Coalition.

No criminal charges were filed; the Los Angeles County district attorney's office concluded both were "willing participants exercising bad judgment."

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