Participants in the furious debate over sexual assault on American college campuses tend to fall into two irreconcilable camps.
On one side are the feminist activists, who argue that there is a rape epidemic on college campuses that can only be addressed with strict rules governing campus sex — no sex after drinking, no sex without explicit verbal consent from both parties — enforced vigorously by campus tribunals that prioritize victims’ safety over due process for accused rapists.
These activists, by drawing attention to the prevalence of sexual assault and the plight of its victims, have successfully won over many administrators and politicians. With the encouragement of the federal government, colleges around the country, including Stanford, have reformed their policies to make it easier to expel students accused of rape. While the activist approach could reduce the rate of sexual assault, it has also led to legitimate concerns about the civil liberties of the accused, who are sometimes thrown out of school for sexual behavior that would be permissible off campus, and whose guilt is usually determined under a “more likely than not” standard.
On the other side are the libertarians, who argue that the campus rape problem is exaggerated, and that, in any case, the existing criminal justice apparatus — the police, prosecutors and criminal courts designed to apprehend and punish those who commit violent crimes — is perfectly capable of addressing campus assaults. The libertarians have raised strong objections to the activist approach, but they are too dismissive of some victims’ desire to handle their grievances through administrative channels rather than the criminal justice system, and of colleges’ legitimate interest in protecting their students from some predatory behavior that isn’t punishable under state or federal law.
What if there was a regime that would address both the activist and libertarian concerns — that would ensure that students who wanted to be protected under the strict campus sex rules could remain protected, while students who wanted to retain maximal due process rights and sexual freedom could opt out?
Here’s how it would work at Stanford. Student registration forms would explain that all students on campus are protected from sexual assault and other violent crime by the California law, and that any sexual assault accusation would be thoroughly investigated by the police and, if appropriate, reported to the district attorney’s office. They would also explain that, in order to give Stanford students additional protections above and beyond that afforded by the justice system, the campus operates a parallel system for adjudicating accusations of sexual assault.
Stanford’s system, of course, defines sexual assault more broadly than the California criminal code — for example, by suggesting that intercourse with an “intoxicated” person could constitute rape, without specifying how intoxicated the person has to be. Moreover, campus tribunals that handle sexual assault accusations lack many of the due process protections afforded to accused rapists in criminal courts, such as the right to counsel during the proceeding and the right to be innocent unless proven guilty beyond a reasonable doubt.
With all this information in mind, students would be allowed to opt out of the University system — just as they can opt out of the University health insurance system — and each student’s status (opted out or not opted out) would be posted to a Stanford webpage accessible to anyone with a Stanford ID. Students could change their status at any time. Stanford’s strict rules would govern any sexual encounter in which one or both parties had not opted out of the system. But if both parties had opted out of the system, only the ordinary criminal laws would apply.
One obvious objection to this proposal is that, because men are overwhelmingly the perpetrators of sexual assault, and women are overwhelmingly the victims, all men would opt out of the system and all women would choose to retain the extra protections. But it isn’t at all clear that this would be the case. For one, some libertarian women, who think the campus sex rules are superfluous and infantilizing — as well as some feminist men, who think the rules are necessary and just — might make their decision on moral rather than purely self-interested grounds. But more importantly, self-interest can cut both ways. Many men would correctly perceive that opting out of the system could invite stigma and make them appear more undesirable as sexual partners. Similarly, many women would correctly perceive that college administrators’ records handling sexual assault is spotty at best, and that failing to opt out would make them less desirable to college men, some of whom are anxious about facing kangaroo court treatment and expulsion.
Another obvious objection is that students are unlikely to check each others’ status before hooking up. But many sexual assault accusations — including the one that rocked the Stanford campus last Spring — occur between people who are or have previously been dating, and are therefore likely to know whether their partner has opted in or out. Moreover, ignorance of a rule or regulation is not a license to be exempt from the consequences of one’s behavior. If a man has not opted out of the system, or chooses to have sex with a woman who has not opted out, he can hardly complain when he is subjected to the University’s stricter rules.
Adjudication of campus sexual assault accusations is a thorny problem that defies easy resolution. But an opt-out regime would accommodate the interests of both of the feuding camps in this bitter debate better than any other conceivable system by giving students the freedom to choose the type of system they want to live under.
Jason Willick, a senior studying history, is the editor in chief of Stanford Political Journal.