James Taranto, the Wall Street Journal columnist and "Best of the Web" daily proprietor at WSJ.com, lays down an awesome marker in the fight over the spate of Title IX activity since the Obama Administration's "Dear Colleague" letter of April, 2012.
Get a load of this (the emphasis in the quote below is added):
Brett Sokolow, director of the Association of Title IX Administrators, has a warning for American college and university administrators: In their efforts to enforce Title IX, he argues, they are running afoul of Title IX.
Title IX is a provision of the Education Amendments of 1972 that stipulates: "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." Under the Obama administration, the Education Department has interpreted this law as requiring colleges and universities to police sexual misconduct involving students, on or off campus, under the broad rubric of "sexual harassment . . . including sexual violence."
In a newsletter to members dated last Thursday, Sokolow reports that "in the last two weeks, I've worked on five cases all involving drunken hook-ups on college campuses. In each case, the male accused of sexual misconduct was found responsible. In each case, I thought the college got it completely wrong."
He does not reveal the names of the institutions involved or any other specific details of the cases, presumably because his consultative role entails a duty of confidentiality. But he sums up the problem as follows: "Some [disciplinary] boards and panels still can't tell the difference between drunken sex and a policy violation"--that is, a sexual assault.
Sometimes that is by design. "In a recent case," Sokolow recounts, "the campus policy stated that intoxication creates an inability to consent." That makes it easy to establish a violation--except that in many cases the accuser has violated the letter of the policy as much as the accused has. "If both are intoxicated, they both did the same thing to each other," Sokolow writes. "Why should only the male be charged if both students behave in ways defined as prohibited by the policy?"
That's a rhetorical question. "I'm not suggesting we charge both," Sokolow clarifies. "Surely, every drunken sexual hook-up is not a punishable offense. . . . There must be something that the respondent does, beyond having sex, that makes a lawful act into a policy violation."
In his view, a drunken sexual encounter should be considered an assault only if the facts show that the accuser was incapacitated by alcohol and that the accused had mens rea,or guilty intent: the "knowledge of that incapacitation, whether actual or constructive"--in other words, "that the respondent know or should have known" of the complainant's incapacitation.
"There is no need for an intent to rape, but there has to be something more than an intent to have sex to make this an offense," he writes. "Otherwise, men are simply being punished for having sex, which is sex discrimination under Title IX, because their partners are having sex too and are not being subjected to the code of conduct for doing so." Title IX, after all, protects students of both sexes from sex discrimination.
I will bet dollars to doughnuts, that one of the cases Sokolow reviewed, was the Gibbons case. Michigan Daily, get on it.
This is exactly where I thought that the Gibbons case (and similar matters) was headed from the first time it was mentioned here at 11W. And at MGoBlog for that matter.