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Redefining Safe Sex On Campus

facade with columns in the Academical Village facing onto the lawn, with autumn foliage, at the University of Virginia
University of Virginia's Academical Village. Photo by Karen Blaha.

Not long ago, a young father sat next to me on a plane.

He was traveling with his family, though they were sitting elsewhere. We got to talking about our respective children. His older daughter was about 9 or 10 years old, and he had a couple of younger sons. My own daughters are both out of college. In the course of our conversation, he remarked to me that sending a daughter to college seemed much more frightening than sending a son.

I told him that if I had children approaching college age these days, I’d probably feel the opposite.

Sure, you naturally worry more about the physical safety of a daughter, though that may reflect more cultural bias than reality. Certainly there is a lot of concern about sexual assault and other mistreatment of women on campuses across the country. But we know the basics of how to protect and defend against these assaults; we also know how to respond if something terrible actually happens. You can counsel a daughter on ways to stay safer, though whether she takes your advice depends on the daughter.

But what do you say to a son who goes to a campus where administrators are under pressure to be investigators, prosecutors, judges and juries? Where those administrators are given the impossible mission of protecting the rights of both parties in an alleged assault while making sure women receive more or different or better justice than they can get from real police, prosecutors and courts?

The answer, I think, is that boys (and also girls) arriving on college campuses today have to be taught safe sex, and that this means far more than just using physical protection during the act. Of course it means treating all prospective partners with respect and sensitivity. Of course it means understanding that “no means no.” But it also means understanding that when the issue is presented as “yes means yes,” the burden may be shifted to the accused to somehow prove the other party consented to everything that happened.

Even if you did have proof - even if you required every prospective partner to give a video statement including their name, the date and a list of all the activities on which you are about to embark by mutual consent - you or an organization to which you belong may still be accused of something that you either did not do or did not realize you were doing when you were doing it. How, for example, can you know that a partner who is willing to engage in acts A, B and C does not wish to participate in act D, if she does not tell you? This can and surely will be portrayed as a violation of “yes means yes” requirements, regardless of practicalities or consequences.

Are false rape accusations rare? So we’re told. But they do happen. They have happened repeatedly in circumstances as varied as those of Tawana Brawley in the 1980s and the Duke lacrosse case of the mid-2000s.

Joining these high-profile examples is the story that ran in Rolling Stone last fall, in which a University of Virginia student described an implausibly violent gang assault at a fraternity, an event which several journalists were all too willing to assume had actually taken place. The magazine issued a retraction in December when it became clear that elements of the source’s story did not hold up to scrutiny; last weekend, a full report from the Columbia University Graduate School of Journalism examined the many journalistic failures that led to the magazine presenting the allegations as not only plausible, but true.

The UVA fraternity where the alleged rape was meant to have taken place has said it has plans to pursue a lawsuit against Rolling Stone for defamation. And, perhaps ironically given that several of the journalists involved in the story blamed their errors on too much deference to the source in question, many activists have suggested the accusations will make it harder to pursue justice for actual survivors of on-campus sexual assault.

Journalists are not the only ones who were willing to swallow such an extreme story. The original Rolling Stone article went viral when it was published, attracting 2.7 million views online. The article arrived amid an intense debate about the way colleges handle rape allegations, spurred by numerous federal investigations, a Columbia student who responded to what she saw as a miscarriage of justice with a high-profile performance art project, and a White House initiative with prominent sports and celebrity endorsements. Given the context, there was a large audience primed to swallow the Rolling Stone’s faulty journalism whole.

We are approaching an era where college sexual assault cases may become as much an item of hysteria as the daycare sexual assault mania of the late 1980s and early 1990s. There are proposals being floated that colleges mete out their own punishments, independent of the courts. A recent opinion piece in The New York Times revisited an on-campus assault the author reported in the 1990s, in which the criminal charges against the man she accused of raping her were dismissed, but a university panel found him responsible for the assault (though his punishment was limited to a reprimand via letter in his file). The author wrote, “The burden of proof in a criminal trial is often unattainable in typical sexual assault cases, where the assault occurs between people who know each other, in private quarters with no witnesses, often with alcohol involved […] The burden of proof on college campuses, typically framed as a preponderance of evidence, is more realistic.”

In other words, the answer is not to improve how campus assaults are handled by the criminal justice system; the answer is to force universities into the position of making up for any miscarriage of justice, preferably by expelling the accused student on weaker evidence than a court would require before imposing even a sentence of probation or community service, let alone jail time.

So if you, young man, are accused during your senior year, you may be expelled from a school in which you have invested hundreds of thousands of dollars, after a proceeding in which none of the standard rights of due process, effective counsel or cross-examination of witnesses may apply. Good luck transferring to a similarly prestigious campus, in hopes of at least completing your degree, under those circumstances.

Sexual assault is a vicious crime that demands - and receives - severe punishments. These include, in many cases, lifetime inclusion on sex offender registries. Such penalties should be meted out only with strict protections for the rights of the accused parties. Campuses are utterly unequipped to provide such protections, just as they are utterly unequipped to investigate and prosecute such crimes. If we want to take any lingering stigma out of suffering a sexual assault (and I don’t know why anyone today would consider it worthy of stigma), if we want victims to really believe that nobody sees them as somehow responsible for what has happened, we ought to start by applying the same principles of law and journalism to sexual assault that we apply to any nonsexual, physical assault that happens in a public park or a backstreet alley. Or a college dormitory, for that matter.

In a less hysterical era, we would demand colleges immediately report allegations of sexual assault to the criminal authorities, just as we demand such reporting from teachers and doctors when there is evidence that a minor is a victim. But if the federal government requires campuses to set up a parallel court system, then everyone who sets foot on those campuses had better be prepared to practice safe sex - with all the documentation they can muster.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s recently updated book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us,” and Chapter 4, “The Family Business.” Larry was also among the authors of the firm’s book The High Achiever’s Guide To Wealth.

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