“I didn’t want to do it, but I did.”
How many billions of times throughout history have people thought that — when tempted by sin, obliged by duty or pressured by social expectations. And then, after the act, felt regret, or with sex, shame that stems from an absence of attraction or affection. Few of us can claim to “know thyself,” so it is hardly surprising that our feelings, and sexual desire in particular, are often ambiguous and ambivalent. This is timeless human truth.
With this in mind, consider the supposed epidemic of college rape. What do we talk about when we talk about nonconsensual sex at Yale? We don’t ordinarily talk about physical coercion. We don’t need to, really, since all agree that sex obtained through force or threat of force is an obvious, grievous wrong and ought to be punished as such. But today’s feminists and activists are obsessed with cases of “sexual misconduct” that are decidedly less clear and, it must be said, less clearly wrong. Campus codes, written in muzzy and manipulable language, might cover sex that “I didn’t know how to say no to” or that “made me uncomfortable.” They might apply to drunken sex that is half-remembered or that is had in response to social pressures.
On that front, think of all the reasons why people might have sex: to keep a struggling relationship going, or because we think that our opposite number “expects” it, or will insult us, or make a scene or ridicule us to their friends. “I wanted him to like me;” “I was too drunk to care;” “I just wanted to go to bed already.” We’ve heard these reasons from men and women alike. They can give rise to sex that sometimes feels coerced, unwanted, regrettable or even traumatic; sex that’s had reluctantly and later rued. Or sex to which some feel they “can’t say no” or even “are afraid to say no.” Are we ready to label all, or even most, sex like this as rape? We must ask: What are good and bad reasons to have sex? Which reasons, and which situations, should we regard as coercive? These are tough questions on which reasonable minds can, and do, differ. Yet it’s astonishing how rarely these realities are discussed with subtlety, humanity and calm.
The problem of mixed feelings and extra-lustful motives is as old as the hills. Suitable norms and conventions can soften it, but total elimination is unrealistic and utopian. Affirmative consent laws are one modern attempt to intervene, but, alas, they will not work. They are administrative fiat as a substitute for culture and custom, for restraint and modesty, for self-knowledge and self-possession, for courage and resolve, for learning to say “no” graciously and to accept “no” with dignity. We cannot legislate away the messy reality of life under the covers. No regulation will make sex and relationships less complicated; no policy will cure sex of its frequent disappointment, frustration and regret. In seeking this painless utopia, we end up with laws that are unenforceable, invasive, paternalistic and all but doomed to fail. We invite “government in the bedroom,” which should elicit our suspicion and scorn.
Indeed, it is puzzling that those who seek increased government involvement in campus rape have looked to the bedroom rather than the courtroom. Rape is, after all, a brutal crime; it is a fundamental violation of self-ownership and autonomy and is unique in the opprobrium it provokes. Thus rape accusations ought to be directed to the police and resolved in courts of law. Campus courts are not the place.
The criminal law of rape and sexual assault, both substantive and procedural, is hundreds of years in the making. Rigorous procedural protections, such as high evidentiary standards, a vetted and impartial jury of peers and the right to probe witnesses’ testimony with cross-examination, grow out of an understanding that it is easy to get the wrong answer in criminal cases. But it is even easier to get the wrong answer in cases of campus sexual assault, where he-said-she-said accounts, lubricated with copious amounts of alcohol, abound. Yet few of the protections found in the criminal law are present on campus today. Instead, inexperienced and inexpert campus tribunals are asked to apply standards for “sexual misconduct” that are protean and ill-defined, and that too often serve as a Rorschach test for administrators’ prejudices and presuppositions about ideal male-female relations. Under many campus codes, non-consent alone — regardless of whether and how that state of mind is communicated to the accused — is enough to ground misconduct. This situation is an invitation to error, arbitrariness, inconsistency and injustice.
Adjudicating claims of sexual assault is complex and exacting, and colleges aren’t up to the task. Under the sway of moral panic and dubious government mandates, good sense and fairness will inevitably suffer. Universities should leave crimes to the courts — and leave sex, good and bad, to their students.
Isaac Cohen is a junior in Davenport College. Contact him at isaac.n.cohen@yale.edu.