Mind the Step

Okay, here's the quick and dirty synopsis.

At some point in the past, college student Jane Roe alleges sexual misconduct on the part of college student Harry Poe to the Title IX office. Harry is found guilty and expelled from ROTC program, of which they are (or were) both members.

More recently, college student John Doe (also in ROTC) and Jane Doe have an alcohol-fueled one-night stand. John alleges sexual misconduct to the Title IX office, and Jane is found guilty and suspended from school until John graduates.

Jane sues, claiming that John and Harry are friends, and John's sexual misconduct complaint is actually an act of revenge against Jane for her complaint against Harry, and his subsequent punishment. "On information and belief, John Doe was motivated to file a Title IX Complaint in retaliation for a prior Title X Complaint Jane Roe had filed against his friend."

Following all that?

This is one of those things that falls into the bucket of "You can't make this stuff up," because if you did, you would likely run into accusations of attempting to undermine protections against sexual assault on campus, because it neatly encapsulates some serious problems with the way things work.

• Jane Roe alleges that John Doe is cynically abusing the system to punish her for complaining against Harry Poe. And the way the system is set up, this is plausible.
• It's also plausible that John Doe genuinely feels that Jane Doe is sexually predatory, and Jane is simply being held to the same standard that John would have been had she complained about him first.
• Jane's attorney, Josh Engel, says that it's unfair that if they were both drunk, and they both engaged in the sexual contact, that only Jane is being punished, citing Doe vs. University of Miami, which effectively says that if both students are inebriated, and therefore neither can consent to sexual activity, both students must be investigated for sexual misconduct against each other. (To take this silliness a bit further, I'm waiting for someone to be caught masturbating while under the influence and be investigated for sexual misconduct against themselves. It just doesn't seem as far-fetched anymore as it genuinely should.) Not that this argument, that a regime that says that "alcohol precludes consent" effectively means that two drunken students are effectively assaulting each other, hasn't been made before. But it tends to be countered rhetorically with common gender-role stereotyping and procedurally by the fact that the first complainant wins. The Sixth Circuit, however, says that this is a discriminatory lack of due process.
• Reason's Robby Soave, meanwhile, posits that John Doe's motive was to do unto Jane before Jane did unto him. Which makes sense, given that since both students were intoxicated, a finding that their (barely) sexual encounter was non-consensual was effectively a foregone conclusion; which meant that if Jane had gotten the jump on him, John would have been the one suspended until her graduation.

And the issue is, that while three of the proceeding four theories might fall into the category of unintended consequences, they're not unforeseen consequences. Whether the system is being intentionally abused or has just fallen into absurdity, these are outcomes that are perfectly predictable, as the process was very clearly set up to presume a certain level of both good faith and knowledge of intentions without taking any steps to ensure either of them. And while I understand the idea that an imperfect system may be a useful first step to solving a problem, the rest steps also have to be taken. And it seems that they're slow in coming, if they're in the pipeline at all.

This is not to say that the perfect should be the enemy of the good. Rather, that the deeply flawed should not be considered "good enough," and therefore, not in need of urgent improvements; especially when the flaws are understood from the outset. A system that cannot protect itself from either cynical manipulation or simple silliness is not good enough to be a workable solution to a problem. And it doesn't make sense to wait for it to fail to attempt improvements, especially given the understanding that the ease of abusing it can easily lead people to conclude, for whatever reason, that such abuse is, in fact, an intended consequence of the system.

Part of the issue is that a standard that says that regardless of any or all other factors, sexual activity with a student who is intoxicated is sexual misconduct. Not because I'm discounting the idea that plying someone with alcohol to lower their inhibitions and then claiming consent is reprehensible. But because it was, in part, designed to automate the system. It seeks to remove old biases and stereotypes by taking people out of the loop, while not being sophisticated enough to replicate human judgement in nuanced or edge cases. In this, it reminds me of the corporate sexual misconduct training that I've had to sit through when starting a new job. The situations put forward are so obvious that it's difficult to understand how anyone could possibly screw them up, and so I've never learned anything useful; because the intent seems to be to allow Human Resources to check a box that absolves the company of responsibility should I do anything criminal to another employee. It's not designed to help me understand where the line is, but to protect the company when they fire me for crossing it.

I don't know if many students perceive campus sexual misconduct rules in the same way. But they seem to have the same M.O. That should be an encouragement to take the further steps needed to improve them.