Bureaucratizing the War on Men

campus_rapeby James A. Bacon

The bureaucratic machinery for prosecuting the Obama administration’s war on a supposed “epidemic of rape” — is building with frightening rapidity in Virginia. The University of Virginia spent about $1.5 million over the past year to comply with the U.S. Department of Education’s Title IX requirements, while Virginia Commonwealth University spent about $1 million, according to the Richmond Times-Dispatch.

Now state universities are discussing creation of a network of shared resources and investigators to address campus assaults. At a meeting of university presidents at the State Council for Higher Education in Virginia (SCHEV), UVa President Teresa Sullivan said a regional collaboration would help schools with fewer resource meet requirements of federal Title IX investigations.

This summer, UVa hired a new Title IX coordinator, two investigators and a coordinator for the federal Clery Act, which requires the disclosure of crime statistics. “Would I have rather hired four faculty members with that money? Yes, I would,” she said. “But we needed to do this to be in compliance.”

The “epidemic of rape” movement has overshot the mark, going way beyond the commendable objectives of combating campus rape and supporting the victims of rape. The new regime criminalizes sexual encounters — typically involving excess consumption of alcohol — that women regret in retrospect. Under the new logic, women are absolved of any responsibility for their own actions, while men who fail to obtain a woman’s “consent” during their drunken couplings are declared guilty of rape or sexual assault. The  apparatus being foisted into place is not merely solicitous to women but sometimes encourages them to file complaints when they were not initially disposed to do so, while administrative proceedings are stacked against men. As a consequence, an increasing number of men are heading to the courts to seek redress against university sanctions.

Meanwhile, a new puritanism is descending upon college campuses, as witnessed by the reaction to a sophomoric stunt by some Old Dominion University frat boys last week. Their offense: hanging a banner from their house saying, “Rowdy and fun—hope your baby girl is ready for a good time.” Suggestive jokes now are deemed worthy of administrative review and possible punishment.

To be totally clear, I find repugnant the kind of casual drunken sex on college campuses that leads to all too many regrettable and/or violent sexual encounters. I’m all in favor of throwing the book at rapists. I believe in chastising young men who treat young women boorishly. But I don’t favor criminalizing non-criminal acts, dismantling basic legal protections for men and squatting on free speech in order to accomplish that aim. There has to be a better way.


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  1. CrazyJD Avatar

    Must be all guys on this blog. No comments at all. Be careful: if you say anything, you will be part of the manufactured war on women.

  2. LarrytheG Avatar
    LarrytheG

    re: it’s all Obama’s fault…

    Clery Act

    Introduced in the Senate as “Student Athlete Right-to-Know Act” (S. 580) by Bill Bradley (D-NJ) on March 15, 1989
    Committee consideration by Senate Labor
    Passed the Senate on February 22, 1990 (voice vote)
    Passed the House as the “Student Right-to-Know and Campus Security Act” on June 5, 1990 (without objection)
    Reported by the joint conference committee on October 16, 1990; agreed to by the House on October 22, 1990 (voice vote) and by the Senate on October 24, 1990 (voice vote)
    Signed into law by President George H. W. Bush on November 8, 1990

    this is 25 years ago..

    like so many other laws.. (like the Clean Air and Clean Water Act or the Community Reinvestment Act… and others.. etc)….

    so,,, decades after these laws were passed – they now become

    “Obama’s “war on”.

    can anyone explain this?

    1. The Act has been around for 25 years. Nobody interpreted it the way it’s being interpreted now until Obama was president.

    2. TooManyTaxes Avatar
      TooManyTaxes

      Larry, most accomplished lawyers would agree that Obama has often, but not always, interprets statutes way beyond their reasonable boundaries. (Recall my post on Harvard Professor and strong liberal Lawrence Tribe’s brief accusing Obama of unconstitutionally extending the EPA’s authority over power plants?) Do you really think Congress would have passed, and GHWB signed, a bill that would mean colleges and universities would have each had to hire a “new Title IX coordinator, two investigators and a coordinator for the federal Clery Act, which requires the disclosure of crime statistics”?

      Obama wants to push the United States back to England before the Magna Carta. He has no respect for the Constitution’s separation of powers.

      1. LarrytheG Avatar
        LarrytheG

        I tend to agree with Steve.. call the police.

        I think the Colleges have screwed this up myself because they are not
        institutions equipped to enforce or interpret the law and clearly the accused have not received due process and yes.. there is too much opportunity to falsely accuse and combining the two is a recipe for injustice.

        maybe all this expense is trying to recreate the law …

        It also don’t help that you have idiots down at ODU exercising their “free speech” and supercharging the “something has to be done” folks.

        On the regulation – Congress has a role.. they can veto even regulations.. and they can amend the law – and this Congress has distinguished itself as incapable of agreeing (even within the party) passing even basic legislation without obfuscation and threatening shutdowns – and there is a big downside when you cannot do even basic things. You forfeit regulation to the POTUS.

        did want to also point out – Congress has a role in regulation if they want to exercise it:

  3. Steve Haner Avatar
    Steve Haner

    Agreed. Not related to the Current Occupant, per se. I’d be more inclined to blame a bloated federal education bureaucracy searching for relevancy, and the continued elevation of victimhood as a sacred state of being. As dormitory landlords, colleges clearly have some responsibility to protect their tenants. Like any workplace, they have a responsibility to protect their employees and customers. But it seems like an incident involving two college students gets treated to far more scrutiny and bureaucracy than an incident involving a couple of 20 year olds who are not students, and the laws are enforced and interpreted in some very strange ways.

    Ladies, call the cops. Point the finger and testify against the bastards. If it were my daughter or my granddaughter, the last person I would want dealing with such an issue is a college bureaucrat or some lawyer who’s job is to protect the college. Criminal behavior should be prosecuted the same wherever the alleged incident takes place, and the rights of the accused should be the same regardless of the venue.

    And my first amendment rights allow me to say that those frat morons at ODU should have been suspended for one full semester. Everybody. You cannot wink at that behavior and then complain at the reaction underway against that behavior.

    But I dream the impossible dream.

  4. Hear, hear, your last paragraph, Jim!

  5. LifeOnTheFallLine Avatar
    LifeOnTheFallLine

    Ah, I see Jim still thinks college aged women are too stupid/emotionally fragile to know the difference between regret and rape.

    Nothing more to see here.

    1. Yes, that never happens. Well, at least it never happens in Virginia …

      http://www.thecollegefix.com/post/23709/

      1. LifeOnTheFallLine Avatar
        LifeOnTheFallLine

        Mmmm, I love the smell of terrible inductive reasoning in the morning. It smells like…victory.

  6. Americans (and maybe humans) always tend to go too far in any direction before coming back in the other direction and swinging too far towards the opposite pole.

    Before I read Mr. Bacon’s present post, I’d sent him this email below (with edits) and he requested I post my note on his blog. I am not of the opinion that there is a “war on men” but I am, like Mr. Bacon, concerned for our society.

    While I was in Massachusetts last week, this trial was daily news in the Boston Globe. https://gma.yahoo.com/prep-school-rape-trial-defendant-owen-labrie-takes-151007199–abc-news-topstories.html# Presuming the Globe coverage is decent, I submit that a few years ago before the “war on men” question that you (Mr. Bacon) wondered about in the Virginia cases, no prosecutor would bring this to court. 1) there was no actual proven penetration; 2) the young girl helped through out (and admitted in court to helping by lifting her arms over her head to facilitate blouse/bra removal and lifting her hips to facilitate pants removal); 3) she flirted both before and after the indictment in texts/emails (and admits to doing so as the texts were read in court); 4) this happened when both were legal juveniles; 5) she raises the complaint months later and 6) she told her roommate, before the incident, that oral sex was a probability.

    And all that was in the jury’s ears before the defendant testified. I couldn’t imagine a jury convicting this boy as I read the Globe.

    Now, both these kids are having their lives ruined in a case almost destined for the state to lose (again, if the Globe coverage is decent). Is the political climate causing prosecutors/college administrators to act against the best interests of the state/college (costs) and the citizens (the younger girl and young boy or the college students)? I submit (without of course any proof) that prosecutors in the towns where I was a crime reporter in the late 1970s, early 1980s, would have told this “Prep school” girl’s parents that they didn’t have a winning case and the state could not justify spending the kind of money required for a criminal prosecution. Prosecutors, be they male or female, would have said, “The defense will bring these texts to light. The defense will attack your daughter’s credibility with solid unimpeached information. The defense will put that roommate on the stand and remind her that perjury is a felony. The defense will UNDERLINE every single thing the girl has done, probably throughout her life, which indicates she’s an unreliable witness. Do you want your daughter to go through that when what she’s described isn’t even penetration?”

    As almost any thinking person should be, I worry about our “sexting culture,” I worry about oral sex not being considered sex by a significant portion of the young, I worry about the loss of age-old liberties, I worry about the “rape” issue, and I wonder if we’ve become Rome.

    Our “damned if we do, damned if we don’t” culture seems determined to eliminate common sense in our authorities. Remember, a few years ago a 5 or 6 year old boy faced sexual harassment charges for kissing a girl in his kindergarten class and the poor teacher was stuck with ‘rules’ which demanded she report it.

    To the point in this latest Virginia incident: Before the hoopla on sexual issues of the past few years, I submit that campus cops would have simply told this fraternity that the “joke” wasn’t proper and pulled the sheets down. But, more importantly, the fraternity would have realized before painting any sheets that talking about the sick joke was an entirely different thing than actually enacting it. And the issue would never have gone beyond a snicker or too in dorm rooms.

    Also lost in our cultural norms is the awareness that just because I can write/say/do something legally, that is not a reason for doing so. To use an old-fashioned term, ridiculed by Barbara Streisand (sp?) brilliantly in the movie “What’s Up Doc,” we seemingly, as a culture, have lost all sense of “propriety.” The same year “What’s Up Doc” came out (and Mr. Obama wasn’t yet in law school…), the U.S. Supreme Court ruled that police in Skokie, Ill MUST pay to protect pro-Nazi marchers in a very heavily Jewish neighborhood which included dozens with numbered tattoos on their arms. Prior to that, a police chief (based on my knowledge of the cops I knew as a crime reporter) would have just told the Nazis, “Yeah, you got the right to march. My officers have the right to a coffee break.”

    If there is a president who should be held responsible for all this disturbing (my opinion) cultural change, his name is NOT Obama. Nor is it Bush.

    1. LarrytheG Avatar
      LarrytheG

      I thought Saltz had some important perspectives… and yes.. making this about Obama is popular with the critics but it’s a disservice to the issues and it may take another POTUS for us to recognize it.

      Public school teachers and Sunday school teachers will now tell you that you cannot go help a child in the restroom by yourself anymore.

      workshops and actual classroom courses are now required of these folks to essentially help them understand how – a well meaning act – can ruin their lives…

      you can blame that on Obama also but it will only really expose something else going on with us these days.

      1. TooManyTaxes Avatar
        TooManyTaxes

        Larry, I don’t blame Obama or any other president for a change in the culture. It’s crazy to suggest one person can drive the behaviors and beliefs of a big and diverse nation such as the United States.

        As a citizen and a lawyer I do hold the Obama Administration responsible for stretching statutes well beyond their traditional interpretation; for ignoring the mandates of the Administrative Procedure Act; and taking many unsupported positions in litigation. Of course, Obama is not the first nor the last president who has or will engage in such actions. (I’ve strongly criticized the outrageous actions of Kevin Martin, the last GOP chairman of the FCC.) But having observed a number of administrations over my adult life, much of which has been in the Washington area, the evidence leads me to conclude the Incumbent is on the extreme edges of these activities. Obama clearly believes the ends justify the means.

        What is wrong with that approach is that it offers future presidents the opportunity to do the same; hinges people’s rights on obligations on the whims of whoever is in the White House; and adds to the hostile political environment in which we live.

        The American system of checks and balances, as well as separation of powers, was designed to frustrate those who believe they should win all the time, while providing stability and protection for those not in full control. Sometimes you don’t win.

        1. LarrytheG Avatar
          LarrytheG

          and I just disagree. the country is split on things like this issue, climate, health care, immigration, etc. and this administration is on one side and the critics on the other side.

          The POTUS represents a significant number of people on major issues and you find yourself in the minority on these things.

          Congress has the power to override regulation they don’t like – if they have the votes – and they do not.

          This is what happens when you don’t have the votes and won’t compromise – the POTUS pushes ahead.. and the opponents are impotent to stop so they obstruct if they can. That approach would embolden any POTUS and it has.

          I’ve yet to hear a single Congressman promise to fix the CLery Act – none in Va .. have you?

          1. TooManyTaxes Avatar
            TooManyTaxes

            Larry, it doesn’t work that way. The Constitution does not allow any President to enact regulations because Congress will not pass a bill that would allow the President to enact the desired regulations. Further regulations need to be adopted, modified or repealed in conformance with the underlying statute and the Administrative Procedure Act.

            Your observation that the nation is split on many important issues is certainly correct. But a split in public opinion does not allow the Executive Branch to bypass Congress and act as if Congress passed a bill that it has not.

            The Clery Act says what it says. Congress does not have to amend it to reject an expansive reading of the law. Obama, indeed, any president is stuck with the law as it reads. A failure to reach consensus with Congress means the laws stay as they are.

            When Tim Kaine was governor, he wanted to build on Warner’s tax reform/tax increase legislation. But Kaine could not get the GA to agree. What happened? The law and the tax rates stayed where they were. When George Allen was governor, he wanted to cut back the individual income tax rates. But Allen could not get the GA to agree. What happened? Same thing. But if I applied your logic, because the governor wanted to do something and couldn’t get the votes for a changed law, the governor could just implement his proposal unless and until the GA overrides the action. That is c crazy.

            Virginia law prohibits parole for many crimes after a date certain. Using your approach, McAuliffe could say I think parole would be a good idea, but the GA won’t agree, so I’m going to say every crime except for 1st degree murder is now subject to parole unless the GA passes a law that abolishes parole. The GA did many years ago. McAuliffe and his successors are powerless to change that law unilaterally.

            Governors and presidents alike do not have unlimited powers. Their agendas have and will continue to be checked by the other two branches of government. There is no guarantee that when a president is sworn in that he will be successful in his goals. The Founders designed a system that offers presidents an chance to succeed, fail or do both. The incumbent refuses to understand that.

          2. LarrytheG Avatar
            LarrytheG

            “Larry, it doesn’t work that way. The Constitution does not allow any President to enact regulations because Congress will not pass a bill that would allow the President to enact the desired regulations. Further regulations need to be adopted, modified or repealed in conformance with the underlying statute and the Administrative Procedure Act.”

            TMT – the Administration CAN enact regulations that are allowed within the wording of the law. A good example would be a law that prohibits the administration from funding abortions or moving prisoners from Gitmo to US soil or the EPA from regulation CO2. Congress CAN pass specific legislation that prohibits things from being in regulation. They can also veto regulations they disagree with unless the POTUS can override them.

            “Your observation that the nation is split on many important issues is certainly correct. But a split in public opinion does not allow the Executive Branch to bypass Congress and act as if Congress passed a bill that it has not.”

            it does if the POTUS acts legally within the law – and the Congress lacks the votes to rebut him and the SCOTUS says he acted within the law – as he did when regulating CO2.

            “The Clery Act says what it says. Congress does not have to amend it to reject an expansive reading of the law. Obama, indeed, any president is stuck with the law as it reads. A failure to reach consensus with Congress means the laws stay as they are.”

            Congress can amend the Clery act to prevent the things the Administration is doing that people disagree with.

            You can’t have it both ways. You can’t blame Obama for regulations you disagree with then say there is no remedy. That WOULD make him KING!

            There ARE checks and balances IF Congress has the votes!

            “When Tim Kaine was governor, he wanted to build on Warner’s tax reform/tax increase legislation. But Kaine could not get the GA to agree. What happened? The law and the tax rates stayed where they were. When George Allen was governor, he wanted to cut back the individual income tax rates. But Allen could not get the GA to agree. What happened? Same thing. But if I applied your logic, because the governor wanted to do something and couldn’t get the votes for a changed law, the governor could just implement his proposal unless and until the GA overrides the action. That is c crazy.”

            no – it’s the difference between regulation and law. Some things in law – restrict the GOV from what he can do. Other things in the law allow the Gov to implement regulations within the law.

            A good example is how you do regulations for allowing abortions by setting the standards for the facility. In other words – Va does not outlaw abortions but prior administrations tried to make the regulations so tough that they would close all but a few but this Gov changed those regulations so they could stay open.

            “Virginia law prohibits parole for many crimes after a date certain. Using your approach, McAuliffe could say I think parole would be a good idea, but the GA won’t agree, so I’m going to say every crime except for 1st degree murder is now subject to parole unless the GA passes a law that abolishes parole. The GA did many years ago. McAuliffe and his successors are powerless to change that law unilaterally.”

            He could not do that if parole was specifically not allowed for any reason. If parole was allowed then it would be up to the Administration to draw up regulations as to how it would work.
            the GA can not allow it at all or allow it but with specific rules for say murder but leave it up to the Gov for non-violent. The Gov can in turn – within how the law is written – decide that armed robbery would not be paroled but other lesser kinds would.

            “Governors and presidents alike do not have unlimited powers. Their agendas have and will continue to be checked by the other two branches of government. There is no guarantee that when a president is sworn in that he will be successful in his goals. The Founders designed a system that offers presidents an chance to succeed, fail or do both. The incumbent refuses to understand that.”

            They do not. I agree. But if the law gives them responsibility to carry out the law – HOW it will be done IS in the realm of implementing regulations – except for areas that are, within the law, prohibited.

            this is what I am saying. You can have the clean air act that allows the administration to determine what pollution is or is not OR you could specifically restrict it and, in the law , prohibit regulating certain kinds of pollution.

            It’s up to Congress to write the laws. It’s up to the Administration to implement the laws via regulation – within the limits of the law as they have been written.

            Almost every law – over time is re-authorized – modified, etc. Medicaid originally allowed abortions. It was changed so that they were not allowed. Glass–Steagall is a law that was changed.. later.. some say for worse..others better.

            each law allows or prohibits things – but the regulations that implement them also can further restrict – but they cannot undo the law.

            If a law is written so that it actually ends up allow more things than they really wanted – they go back and amend it.

            But you can only do that – as long as Congress has the votes to make the changes and the POTUS agrees or Congress has the votes to override a veto.

            A POTUS can elect to not pursue an expansion of the regulations – that are still permitted within the law – or the POTUS can pursue such expansions to the limits of what the law allows.

            He can be sued if they think he is in violation of the intent of the law – and has been and was pushed back on immigration.

            So 3 branches of govt – checks and balances.. and the power of the POTUS is real and substantial – if the Congress writes laws that are not as precise as they would like them to be.

            Right now – you could have a laundry list of what you don’t want the Clery Act to allow in regulation. You could specifically rule out the new positions the administration has put in the regulation.

            Congress could amend the Clery act to specifically deny those positions.

            Failing that – they could sue – like they did with immigration – to have the courts rule that the law did not allow the POTUS to regulate what he though he could.

            What I’ve heard and read from some – is that Congress should not allow regulation at all – just the law.

            Now I know that even you would consider that folly, right?

  7. JOHN BR Avatar

    As far as the claim that since the laws have been there for decades, so don’t blame Obama:
    Simply look at all the laws he refuses to enforce. Since he picks and chooses what laws are actually “law”, it is most definitely his fault and the fault of his overly-politicized justice department.

    1. LarrytheG Avatar
      LarrytheG

      the laws CAN allow discretion on enforcement OR the law can require that it be a crime – with no discretion.

      it depends on how the law was written.

      if the govt strictly enforced the law – all laws – there would be no 5mph discretion on a speeding ticket. you go 56 -you get a ticket.

      you cheat on your taxes – you go to jail.

      the law allows regulations to specify what punishment fits the crime.

      The Code of Federal Regulations (CFR) is the codification of the general and permanent rules and regulations (sometimes called administrative law) published in the Federal Register by the executive departments and agencies of the federal government of the United States. The CFR is divided into 50 titles that represent broad areas subject to federal regulation.

  8. As is quite normal, there has been a huge evolution away from the subject and this blog’s comments have merged into a huge philosophical question of what is law and what is regulation.

    I’ll take it a step further. If Congress has to specify in new laws every single aspect of how/when/where/ any particular what of a prior law means, who can possibly understand the massive and meticulous end product? This leads to even more of a “pass the buck” culture that askew common sense which leads to other bigger (probably) issues. Through mandatory sentencing laws, for example, have been a major factor in the very high, and very costly, prison population and — since so many offenders are minority — led to part of the social unrest present today. Mandatory sentencing of course was an attempt by one body, congress or legislators, to control the action of another branch of government, judicial. The judges’ ability to utilize common sense was eliminated, or at least greatly curtailed, and the stories of judges’ saying something like, “I wish I didn’t have to do this but my hands are tied…” are legion.

    In the process of doing this over, what, 30 years?, we’ve seen the Black Caucus — the prime movers behind the original mandatory sentencing fearful of crack in black neighborhoods — switch completely towards implying that it’s, today, a racist law because it means that so many more blacks than whites end up behind bars on drug charges. And for longer sentences.

    Which is the flip side to Larry’s point expressed by other commenters. In this process we’ve moved far away from what we perceive to be the founder’s intentions. The “check” can’t wait until after the fact because by then it’s encoded in law/regulation/common practice and almost impossible to reverse UNTIL some event, or series of events, are so discouraging that we pass another “mandatory sentencing” law which goes to far in the opposite direction, removing yet again common sense from the possibility of regulation or administration.

    Which I submit is what’s behind the recent cases of young men being accused of rape over what was, or what seemed to both participants, to be consensual at the time. Prosecutors and college administrations are caught in obeying regulations demanded by a significant, very vocal, part of the voting and buying public even when they know that other, foundation, rights are being lost in the process.

    In the sexual field, prosecutors/college administrators are not being allowed to say, as judges through mandatory sentencing are no longer allowed to say, “this situation requires us to use our brains.”

    1. LarrytheG Avatar
      LarrytheG

      Salz has added more insight into the discussion IMHO.

      the thing is – today – in today’s political environment – whether you’re talking about the Clery Act, Immigration, health care, the EPA , etc.

      it’s all rolling back to the fundamental issue of law – and reguation
      and claims and counterclaims that this particular administration is essentially violating the spirit and/or the intent of the law.

      There is a theme that regulation by the administration is somehow an illicit activity never envisioned by the founding fathers.

      .. that “regulation” essentially can corrupt the original intent of the law – to pervert it to do something different than what the law intended – to essentially engage in lawless behavior masquerading as a regulation.

      In this blog right now – as one blog litigates the idea that this administrations regulations are exceeding what the Clery Act intended – in another blog – a similar argument is going on with respect to the EPA regulating emissions from power plants.

      How much do folks really understand the role between law and regulation and the resulting entity known as the US Code? (Virginia has a Code also, BTW).

      Are folks really knowledgeable about how the two really work together or the legitimacy of the role?

      In this day and age – it seems that anyone can make the claim that the administration is acting “illegally”.. and .. it sticks.. especially with the political opponents…

      what I’ve pointed out – and still continue to do so – is say that hardly any law gets created that later on changes are not made in it… as a result of how the law actually worked in practice – ranging from unintended consequences to the way the administration implemented the regulations to other reasons…

      It appears sometimes that some folks believe the Administration was never given the Constitutional power to write regulations… at all!

      Congress does have the ability to amend or repeal law.. as well as the regulations ..IF

      1. they are inclined to do so
      2. – they do have the votes.

      calling the administrations actions “illegal’ when you don’t have the votes to rein in it and legal challenges have failed is …

      well… it’s kind of foolish… and when the same critics start talking about impeaching the SCOTUS or changing the way they are appointed or re-writing the Constitution itself – well.. all I can say

      is that it’s about way more than hiring administrators to carry out the regulations associated with the Clery Act.

      right now – we have an ongoing debate on how to re-write the no child left behind act – and it’s not going very well because there is huge controversy as to what the role of the Federal Govt should be in – education – to the point where critics want to repeal the Dept of education itself.

      so my view is that the Clery Act thing is part of a bigger political issue in many respects…

  9. Well, they didn’t convict the “Prep School” boy of rape, as anyone following the trial could see easily, finding some kind of “misdemeanor sexual contact,” which must mean something to someone.

    Please note that nowhere in this, or any other article, is there a cost to taxpayers for this trial.

    http://www.washingtonpost.com/news/post-nation/wp/2015/08/28/jury-acquits-defendant-of-felony-rape-in-elite-prep-school-case/?wpmm=1&wpisrc=nl_headlines

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