<p>One huge problem that we have here – and it’s a problem that is somewhat embedded in the law, but not necessarily in the practical application of the law in courts and police departments, for better or worse – is that we are setting up a binary system – on the one hand, “rape,” and on the other hand lovely wonderful healthy sex. The problem is that there are many gradations of toxic sex that may or may not constitute rape in theory but are never prosecuted as rape in the real (i.e., not university) world. The world is full of ambivalent sex; I bet many posters here have experienced it, and I think it is especially prevalent among first and second year college students. Personally, I am not certain I had un-ambivalent sex in my first five years of sexual activity. Some degree of fraud is also a constant issue, especially among the young. Not to mention emotional coercion. (Fraud and coercion also void consent, even if it’s given.) </p>
<p>And there’s impaired sex, which we have been discussing to a fare-thee-well . . . but we still haven’t touched on the fact – and I think it’s a fact – that young people especially often get themselves impaired as a way of giving themselves permission to consent to things they would have trouble consenting to sober. I did that, too, and I know women did it, and that I took advantage of that. It was normal for real life: impairment wasn’t always consent, but a lot of the time it was. It was a big step in my personal maturity when I decided I wouldn’t do that any more – I wouldn’t do it to myself, and I wouldn’t participate if others were doing it. But it took a fair amount of experience to get to that point (see above re ambivalent sex).</p>
<p>There is also the problem that sex itself – the rape, if it’s that – takes a few minutes, while consent and its close cousin, the feeling of being harmed, of victimhood, are things that are dynamic over a much longer period of time. It is completely human nature for an enthusiastic yes to become an ambivalent yes at the critical moment and to become a “no” in retrospect. Or vice versa. (Upthread, someone asked someone else, “Do you think all men lie?” My answer would have been “100% of people who do something bad and are confronted about it lie, and so do lots of people who are accused of doing something bad, as well as lots of people who are accusing others.”) If someone is suffering the trauma of having been raped, I want to help her (or him), regardless of whether I think the alleged rapist committed a crime and should be sent to prison.</p>
<p>There are a few people, but only a few, who really do want to criminalize toxic sex. Most of us don’t want to throw people – actually, not really people, really just men – in prison for toxic sex. At the same time, most of us don’t want to do nothing about toxic sex, we want to do something to help our children avoid it at least to some extent. Some on moral/religious grounds – for all the reasons previously given, eliminating bad sex altogether probably results in something resembling chastity. What’s more, the burden of the prevalence of toxic sex among the young falls more heavily on young women – I am not sure why, but I am sure it does, maybe because men are still taught that any sex is essentially good sex – and functions as a real barrier to their success in the world. (I think LGBT kids also bear a disproportionate burden from toxic sex, whatever their sex or gender identity. Or at least GBT kids; the Ls in my world live charmed lives.) </p>
<p>So I think there are good institutional reasons for a college to try to do something about sexual hygiene, as it were. But it’s really better to get away from the dichotomy of rape (bad, criminal, prosecute) and consensual sex (good, leave alone). I think there is rape, the crime that deserves extensive prison time, and I think there are acres of gray areas that are not prosecutable and should not result in prison time but which a college is perfectly within its rights to police as an educational and institutional matter. </p>
<p>But, please, police wisely. I’m looking at you, University of Michigan.</p>