One evening in February 2012, Vassar College students Xialou
“Peter” Yu and Mary Claire Walker, both members of the school’s
rowing team, had a few drinks at a team gathering and left together
as the party wound down. After a make-out session at a campus
nightspot, they went to Yu’s dorm room, where, by his account, they
had sex that was not only consensual but mainly initiated by
Walker, who reassured her inexperienced partner that she knew what
to do. At some point, Yu’s roommate walked in on them; after he was
gone, Yu says, Walker decided she wanted to stop, telling him it
was too soon after her breakup with her previous boyfriend. She got
dressed and left.

The next day, according to documents in an unusual complaint
that Yu filed against Vassar last June, Yu’s resident adviser told
him some students had seen him and the young woman on their way to
the dorm. They had been so concerned by Walker’s apparently
inebriated state that they called campus security. Alarmed, Yu
contacted Walker on Facebook to make sure everything was all right.
She replied that she had had a “wonderful time” and that he had
done “nothing wrong”-indeed, that she was sorry for having
“led [him] on” when she wasn’t ready for a relationship. A month
later Walker messaged Yu herself, again apologizing for the
incident and expressing hope that it would not affect their
friendship. There were more exchanges during the next months, with
Walker at one point inviting Yu to dinner at her place. (In a
response to Yu’s complaint in October, attorneys for Vassar
acknowledged most of these facts but asserted that Walker had been
too intoxicated to consent to sex and had been “in denial,” scared,
and in shock when she wrote the messages.)

Last February, one year after the encounter, the other shoe
dropped: Yu was informed that Walker had filed charges of
“nonconsensual sexual contact” against him through the college
disciplinary system. Two and a half weeks later, a hearing was held
before a panel of three faculty members. Yu was not allowed an
attorney; his request to call his roommate and Walker’s roommate as
witnesses was denied after the campus “gender equity compliance
investigator” said that the roommates had emailed him but had
“nothing useful” to offer. While the records from the hearing are
sealed, Yu claims his attempts to cross-examine his accuser were
repeatedly stymied. Many of his questions (including ones about
Walker’s friendly messages, which she had earlier told the
investigator she sent out of “fear”) were barred as “irrelevant”;
he says that when he was allowed to question Walker, she would
start crying and give evasive or nonresponsive answers. Yu was
found guilty and summarily expelled from Vassar.

New Rules for Campus Sex

Yu, a U.S.-educated Chinese citizen, is now going after the
Poughkeepsie, New York, school in federal court, claiming not only
wrongful expulsion and irreparable personal damage but sex
discrimination. His complaint argues that he was the victim of a
campus judicial system that in practice presumes males accused of
sexual misconduct are guilty. His is one of three such lawsuits
filed last summer. St. Joseph’s University in Philadelphia is being
sued by an expelled student, New York state resident Brian Harris,
who likewise claims he was railroaded by a gender-biased campus
kangaroo court. And in August college basketball player Dez Wells
sued Ohio’s Xavier University for expelling him in the summer of
2012 based on a rape charge that the county prosecutor publicly
denounced as false.

While the lawsuits target private colleges, they also implicate
public policy. That was especially true in Wells’ case: When he was
accused, Xavier was under scrutiny by the federal government for
its allegedly poor response to three prior sexual assault
complaints, and his attorney says he was the “sacrificial lamb” to
appease the U.S. Department of Education. In the other two cases,
there was no such direct pressure, but the charges were adjudicated
under a complainant-friendly standard that the Obama administration
has been aggressively pushing on academic institutions.

In April 2011, the Department of Education’s Office of Civil
Rights sent a letter to college and university presidents laying
out guidelines for handling reports of sexual assault and
harassment. One key recommendation was that such complaints should
be evaluated based on a “preponderance of the evidence”-the lowest
standard of proof used in civil claims. (In lay terms, it means
that the total weight of the believable evidence tips at least
slightly in the claimant’s favor.) Traditionally, the standard for
finding a student guilty of misconduct of any kind has been “clear
and convincing evidence”-less stringent than “beyond a reasonable
doubt,” but still a very strong probability of guilt.

Last May the government reiterated its commitment to the
“preponderance” standard in a joint Department of
Justice/Department of Education letter to the University of Montana
following a review of that school’s response to sexual offenses.
The letter was explicitly intended as a “blueprint” for all
colleges and universities; noncompliant schools risk losing federal
funds, including student aid eligibility. Meanwhile, the Department
of Education also has launched civil rights investigations into
complaints by several college women who say they were sexually
assaulted by fellow students, then revictimized by school
authorities when their assailants either went unpunished or
received a slap on the wrist. The schools under scrutiny include
the University of Southern California, the University of North
Carolina, and the University of Colorado at Boulder.

‘Rape Culture’

The federal war on campus rape is unfolding amid a revival of
what Katie Roiphe, in her landmark 1994 book The Morning After:
Sex, Fear and Feminism on Campus, dubbed “rape-crisis
feminism”-a loosely defined ideology that views sexual violence as
the cornerstone of male oppression of women, expands the definition
of rape to include a wide range of sexual acts involving no
physical force or threat, and elevates the truth of women’s claims
of sexual victimization to nearly untouchable status. This brand of
feminism seemed in retreat a few years ago, particularly after a
hoax at Duke University drew attention to the danger of presuming
guilt. (In 2007, the alleged rape of a stripper by three Duke
lacrosse players sparked local and national outrage-until the case
was dismissed and the young men declared innocent.) Yet in 2013,
the concept made a strong comeback with a sexual assault case that
gained national visibility in January and went to trial in March.
This one was in Steubenville, Ohio.

The facts in Steubenville were ugly enough. A 16-year-old girl
who got very drunk at an end-of-the-summer high school party was
repeatedly sexually assaulted while unconscious or barely
conscious. One boy, 17-year-old Trent Mays, penetrated her with his
fingers, tried to get her to perform oral sex, and essentially used
her as a masturbation aid; another, Ma’lik Richmond, briefly
participated in the abuse. Three other teenagers witnessed at least
some of these acts (which took place in a car and in the basement
of a home after the girl left the party with the boys), taking
photos and a video. The next day, Mays bragged about his exploits
and mocked the girl in text messages to friends, to whom he also
sent her nude photo. When Mays and Richmond, both star players on
the Steubenville High School football team, were arrested and
charged with rape a few days later, many residents in the
football-worshiping small town sympathized with the boys and were
inclined to assume that the girl-an out-of-town private school
student-was lying to cover up her misbehavior.

This sordid saga arguably shone a spotlight on the dark
underside of small-town “football culture,” which can breed a sense
of entitlement and impunity in popular athletes. Yet the national
press coverage, fueled by wild rumors of unspeakable brutalities
(the girl was said to have been drugged, kidnapped, urinated on,
and gang-raped for hours) and of an official cover-up, turned into
a far more sweeping indictment of America’s “rape culture”-a term
that suddenly migrated from the fringes of feminist rhetoric into
mainstream discourse.

Like many radical theories, the idea of rape culture contains
plausible elements of truth: Some traditional gender arrangements
have indeed encouraged cavalier or even tacitly accepting attitudes
toward certain kinds of sexual violence. For much of history women
have been treated to varying degrees as men’s sexual property, with
rape condoned if not legitimized in some circumstances: for
example, in marriage (including forced marriage), or toward women
who transgressed norms of feminine propriety. Even in the United
States, as recently as 40 years ago, juries could be instructed to
consider “unchaste character”-such as being single and on birth
control-as a strike against an accuser’s credibility, and courts
often treated submission to overt physical intimidation as consent
(at least in acquaintance-rape situations). And there is some basis
for the argument that the conventional script of male pursuit and
feminine coyness-with “no” routinely taken to mean “try harder”-can
sometimes blur the lines between consent and coercion.

But this history is only one part of a complex mix of cultural
attitudes-a mix that has long included genuine societal abhorrence
of rape as a violation of female personhood. It is a measure of
this abhorrence that when feminists in the 1970s challenged the
unjust treatment of rape victims, the reforms they advocated-such
as dropping resistance requirements that did not apply to other
violent crimes, or barring the use of a woman’s sexual history to
discredit her-were soon enacted with overwhelming support.
Moreover, the social response to sex offenses has been complicated
by many factors besides sexism, from a general human tendency to
sweep sordid matters under the rug to the difficulty of proving
crimes that occur in intimate settings; these factors have affected
male victims, too. Feminist theory offers no convincing explanation
for why a homophobic patriarchy would also fail to protect boys
from adult male sexual predators.

And yet the “rape culture” trope has gained such sway that even
a New Yorker writer highly critical of activist zealotry
over Steubenville offered a disclaimer to defend the term. In an
article in the magazine’s August issue, Ariel Levy cited a 2011
Centers for Disease Control and Prevention (CDC) report stating
that one in five American women are victims of rape or attempted
rape and a recent Pentagon survey finding that one in four
active-duty service members have been sexually assaulted. The
problem, she concluded, could not be so pervasive unless there was
a rape-enabling culture treating sex as “something men get-and
take” from women.

Defining Rape

But what do these numbers mean? The Pentagon poll defined sexual
assault broadly enough to include a slap on the behind-and half of
its self-reported victims were men. The CDC study treats all sex
under the influence of alcohol or drugs as rape, with no
distinction between unconsciousness and impaired judgment. Even the
CDC’s definition of rape by force could include such transgressions
as unwanted penetration with a finger (no matter how brief) during
an otherwise consensual make-out session. The respondents were
never asked if they thought they were assaulted; in a comparable
survey, the federally sponsored 2007 Campus Sexual Assault study,
two-thirds of the women classified as victims of drug- or
alcohol-induced rape and 37 percent of those counted as forcibly
raped did not consider the event to be a crime. (And these were
college women in the age of mandatory campus date-rape awareness
programs.) Notably, when CDC survey respondents were asked about
victimization during the previous 12 months, men reported being
“forced to penetrate someone”-an act classified as sexual violence
other than rape-at the same rate that women reported forced
penetration. Either “rape culture” goes both ways, and women also
sexually assault their male partners with alarming frequency, or
the CDC definition of sexual violence needs rethinking.

Other claims about America’s alleged rape-supportive misogyny
typically rely on falsified or out-of-context pseudo-facts. Thus,
on the website of The Nation, Jessica Valenti states that
“we live in a country where politicians call rape a ‘gift from
God’ ”-not only distorting a comment made by Indiana Republican
Richard Mourdock during his 2012 run for the U.S. Senate, but
neglecting to mention that the gaffe almost certainly ensured his
defeat in a Republican stronghold. (What Mourdock said was that
life was a “gift from God” even when it began “in that
horrible situation of rape.”) In The Huffington Post,
writer Soraya Chemaly’s list of “facts about rape” includes the
claim that 31 states allow rapists who impregnate their victims to
sue for child custody or visitation. Actually, these states simply
don’t have laws explicitly barring such suits, mainly because it is
presumed to be a non-issue. So far, the only known case of this
kind involves a Massachusetts man convicted of statutory rape who
sued for visitation with his daughter after a family court ordered
him to pay child support.