U.S. Education Secretary Betsy DeVos wants to overhaul campus sexual-assault guidelines. Those Obama-era guidelines, she contended in an announcement last week, “failed too many students,” forcing ill-equipped universities to create their own quasi-legal structures and thus depriving the accused of due process.
DeVos’s concerns raise several serious questions about students’ rights on campus (Emily Yoffe explored the issue for The Atlantic in a three-part series earlier this month). The Obama-administration regulations, partially outlined in 2011 in what has become known simply as the “Dear Colleague” letter, have encouraged colleges to use the lowest possible burden of proof—just over a 50 percent likelihood of guilt—and, some argue, to effectively entertain a bias against the accused in their adjudication process.
Complicating matters further, the debate over sexual-assault policies is playing out at a time when cultural norms are shifting on campus—for better and for worse, depending on whom you ask. Recent changes in how people think about consent, for example, are evidence that the Obama-era rules aren’t all bad, says the author Vanessa Grigoriadis.
In her new book Blurred Lines: Rethinking Sex, Power, & Consent on Campus, Grigoriadis explores the nuances and apparent contradictions in how modern-day college students view and have sexual relations. She analyzes, for example, how today’s female students can earnestly defend Title IX—the anti-gender-discrimination law used to regulate campus rape—while simultaneously celebrating their sexuality like never before. She also questions the expansive definition of sexual assault used by many colleges today. Her findings are based on three years of reporting across 20 universities, including interviews with 120 students and nearly 80 administrators and experts.
I recently spoke to Grigoriadis about her book and her perspective of what’s changing on campus. A condensed and lightly edited version of our interview follows.
Alia Wong: DeVos described a system that places too much responsibility in the hands of universities, one that ultimately denies the accused due process and hurts all students involved. What is your take on the state of affairs, and how did you react to DeVos’s comments?
Vanessa Grigoriadis: She sounded reasonable and yet she was saying some unreasonable things. What she wants to do is cut off the campus courts, but she has no real plan for what she’ll do going forward other than maybe defer to a centralized reporting system. I would love to know who’s going to run that. Would that be people involved in the criminal system? How seriously are they going to take the new standard of consent on campus? ...
Are they [the Office for Civil Rights] planning a return to the time when the only sexual assault that counts is physically violent, penetrative rape, the kind that the criminal-justice system occasionally takes seriously? I didn’t hear DeVos say sexual assault as much as I heard her say sexual misconduct. I'm not sure she is even comfortable using sexual assault to describe the things she's seeing and hearing about on campus.
We're talking about due process a lot, and we're talking about statistics, and we're talking about what’s happening in this very, very small corner of the enormous debate that’s going on about what should be considered ethical sex—fair, treating-each-other-kindly, compassionate sex—on campus and what crosses the line into nonconsensual. That’s the real debate that's going on on college campuses, and the university courts and what’s happening there is a punishment that very, very few people interact with. [Adjudication] is a hard system to get right, but I believe that universities are doing a much better job now than they’ve done at any time in the past, and unless she has a better idea, which we didn't hear, we have to save the [university] courts.
Wong: Why do you think it’s so tricky to address sexual assault on campus?
Grigoriadis: It really does go back to this idea that the standards have changed and that it’s a generational shift in terms of what young people—those who are in college today—consider to be sexual assault versus what older Americans do. I think that the cases are murky in college if you’re looking at them from the vantage point of a 45-year-old ... [for example,] there's a lot of flirtatious texting going on between people before these encounters. There’s the story of violent gang rape by three football players of an innocent, defenseless girl, and in a lot of cases that girl was having consensual sex with one of the players.
There are schools that are recognizing, Okay, this may have started in a consensual manner—there may be evidence that the woman was interested in having intercourse with the guy. But that doesn’t negate her story. Consent can be revoked once people are in the room. And that’s not to say that there aren’t some bad actors here and there, that there aren't cases that are exactly as DeVos and others are describing, that there aren't cases where the girl is over-determining what constitutes assault. But to me the vast majority of cases ... are cases where, by the new standards of consent [in which a student must be explicit about her intentions from the beginning of a hookup], the boy did do something wrong.
So it's not as simple as DeVos is portraying it, and I do understand that we are not a fascist country and we don’t want to punish the innocent—that we would rather 100 guilty people go free than punish one innocent person—but again, tell me what the better system is. Because we all know that the police definitely don’t take nonviolent acts of sexual assault; they don’t want anything to do with them, don’t take them seriously. Prosecutors are extremely wary of such cases—even the ones with evidence. They are really political hot potatoes for them. That may be changing a little bit, but it’s not changing fast enough to justify the wholesale renovation of the system.
Wong: In your book, you describe the following story about a student you call Oliver:
As the year went on, he caught feelings for a classmate, and it seemed reciprocated; one night, both he and she joined a large group of students walking to a house party, but they soon peeled off on their own. … Later, they went back to Oliver’s dorm …
Oliver alleged that they began kissing, and she asked if he had a condom … He told her he was a virgin. Then he put on the condom, but he couldn’t get an erection, which embarrassed him. He said that he took it off, and she gave him head. Once he got hard, they had sex. He never put the condom back on.
Oliver hoped the woman was going to become his girlfriend. But he said she wanted to leave quickly after sex, saying her roommate was worried about her. He claimed that he offered to walk her home, but she said no. The next day, she allegedly texted him that she was upset and wanted to take a Plan B pill. He … sent her fifty bucks for the pill, then asked her when he could see her again. She said maybe after spring break, but then he received a letter from their university saying that he was being brought up on sexual-misconduct charges.
It is hard to say he was totally in the wrong, but it’s also understandable that a woman who requested her sexual partner wear a condom ultimately felt victimized or misled that he didn't. How do you think policies could be written to ensure as fair an outcome for both parties in situations such as that?
Grigoriadis: Those are the kinds of stories that I really heard people talking about in college. Those are the stories—they're not horror stories, they’re not for Law & Order: SVU. But these are things that are creepy and gross and weird, and boys shouldn't be doing them.
[It’s worth emphasizing that] a lot of the stories are clearer [instances of sexual assault]. In terms of somebody is passed out, we don’t need to worry about if they’re just drunk because they’re not moving. In the Vanderbilt football case, that was almost like necrophilia. Nobody should pretend that that doesn’t happen in college because that really is the problem. There's a lot of activists who will say that’s just the after-school special—we want to talk about these fine gradations of consent, but it's really useful to remember the passed-out girl at the off-campus apartment. It is truly a reality.
[But that aside,] we have to stop thinking about this in terms of who’s lying and who’s telling the truth. I would say in [murky cases], I would lower the punishment. That’s how you fix it. … The punishment for the boys in cases has not matched what the actual behavior has been, and we so quickly jump to he was a sexual predator, he needs to be expelled.
[If we] expel the guy, he’ll join the alt-right chorus on the internet and talk about how women lie about rape and women ruin men's lives. … That’s exactly where they go every single time. I mean really, in my reporting—no question, they immediately get on the [men’s rights activism] trip and they immediately get into those chat rooms. ... When it is a situation like the ones that have been described, you need to look at re-education.
Wong: DeVos implied that Title IX administrators are often ill-equipped to handle the duties they’re responsible for handling. You attended a training seminar for campus Title IX administrators. What’s your impression of the staff charged with investigating and addressing campus sexual assault?
Grigoriadis: A top investigator told me the people who are applying for these jobs … they’re not advocates. There’s a role of an advocate at a college who’s there to support survivors—those are not the people who are in charge of this stuff, who more and more have legal backgrounds: They're former lawyers, former police detectives. [The investigator said] Republicans want to make this sound like [Title IX adjudication is happening] in the teachers’ lounge ... it’s not in the teachers’ lounge. I think that, the people who are applying for the job, they’re good, flexible in their thinking, knowledgeable. They genuinely want to learn, and they're doing a good job.
The ones appointed by the school? I don’t know if i could say the same thing about those people. [DeVos is] particularly talking about people in student-affairs departments, and there’s been a problem in which student-affairs professionals who are there to support students are very uncomfortable with punishing students and weighing the guilt of students.
Wong: There’s concern that, while they may be correcting for what amounted to an overreach, the rollbacks could result in a chilling effect on college campuses that would discourage people from reporting sexual assault. What do you think?
Grigoriadis: I don’t think that they will change much in the short term. But in the long term, they will discourage victims and alleged victims from taking their cases to the campus courts. Word will get around that justice is not securable.