Obama and the Rules of Sexual Engagement|
May 27, 2013
In recent columns, I've mentioned a disturbing trend involving the lack of due
process in the adjudication of campus rape cases. The fact of the matter is that
rape cases are rarely handled properly on university campuses. They are usually
either a) taken too seriously or, b) not taken seriously enough. That is
unsurprising, given that rape is both the most over reported and under reported
crime in America.
To say that rape is the most over reported crime in American is to say that
there are more false allegations of rape than of other serious crimes like
robbery, burglary, and larceny. To say that rape is also the nation's most under
reported crime is not a contradiction. It simply means that when rape really
happens, victims are, for obvious reasons, less likely to report it.
Because of the tension between over and under reporting of rape, campus
adjudications must strike a delicate balance between the rights of the accused
and the accuser. If the process results in too many wrongful acquittals, a
backlash can undercut the rights of the accused in future cases. If the process
results in too many wrongful convictions, a backlash can undercut the rights of
victims in future cases.
The Obama administration recently illustrated this backlash principle in a joint
letter written by the Education Department and Justice Department. The letter
was sent to the University of Montana (UM) on May 9 following an investigation
into a number of mishandled rape cases. The letter concluded that the
university's policies addressing sexual assault failed to comply with Title IV
of the Civil Rights Act of 1964 and Title IX of the Education Amendments of
Although the letter announced a resolution agreement with the university, it
went much further than simply dealing with past difficulties at UM. The letter,
which emanated from the executive branch, claimed authority to rewrite the
federal government's rules about sexual harassment and free speech on all
The idea is simple: if the feds just expand the definition of sexual harassment,
and police it diligently, then we'll never have to worry about sexual assault.
This stunning overreach by the Obama administration began with the claim that
the UM findings should serve as a "blueprint for colleges and universities
throughout the country." The letter continued by stating that only "unwelcome
conduct of a sexual nature" will satisfy federal statutory requirements for
defining sexual harassment. Shockingly, this definition explicitly includes
The Obama administration letter attempts to paper over legal precedent requiring
that sexual harassment must be "objectively offensive." By eliminating this
objective standard and replacing it with a subjective standard, the right to be
free from harassment has now been transformed into a broad right to be
un-offended by speech. (Note: my use of “broad” was not meant to be offensive to
The letter further states that campuses have - not a right but instead -
"an obligation to respond to student-on-student harassment." This
obligation exists even when the alleged harassment is off-campus. This is an
undertaking that might require an army of government agents. Maybe the IRS
should get involved.
This is getting confusing so let's summarize what we have so far: college
campuses should (not may) investigate conduct that is verbal (not physical) when
it is isolated (not repeated) and subjectively (not objectively) offensive even
if it didn't actually happen on the campus.
Could the Obama administration possibly get more totalitarian? You bet they
could. In some circumstances, the Obama administration says, universities may
take "disciplinary action against the harasser" even "prior to the completion of
the Title IX and Title IV investigation/resolution."
Let me translate that for those who are not familiar with the concept: Students
(and professors and staff) can be punished for sexual harassment before they are
actually found guilty of sexual harassment.
As one who teaches in the area of criminal law, criminal procedure, and evidence
law, let me employ a simple hypothetical to show just how reckless the Obama
administration has become:
Imagine that I am sitting in a coffee shop in downtown Wilmington, North
Carolina. A woman walks in wearing an "I Had an Abortion" t-shirt that she
bought at the Women’s Resource Center. I turn to her and say "what a shame that
a woman would boast of killing her child in the name of sexual liberty." The
woman sees me and recognizes that I am a UNCW professor. Although I did not even
know she was a UNCW student, she reports the incident to the UNCW
administration. After she accuses me of sexual harassment, I counter by accusing
her of sexual harassment, claiming to be offended by the content of her t-shirt.
Under the new Obama rules of sexual harassment, which is the proper result?
A. The student is guilty of sexual harassment.
B. I am guilty of sexual harassment.
C. Both of us are guilty of sexual harassment.
The correct answer is "C." Remember, according to the Obama administration, UNCW
does not merely have a right to investigate the off-campus incident. They have
an obligation. And if they refuse the federal government can punish them. No
more Pell grants. No more Stafford loans.
Three disturbing things are happening here (and elsewhere): 1. the executive
branch is taking control of the other branches of government. 2. the federal
government is taking control of state-run institutions. 3. the government is
claiming an obligation to abridge free speech in order to prevent rape.
Of course, it is our constitution that is being raped and pillaged. Since that
is a serious matter maybe someone should copy the president.
Mike Adams is a criminology professor at the University of North Carolina
Wilmington and author of
Letters to a Young Progressive: How To Avoid Wasting
Your Life Protesting Things You Don't Understand.