Ohio State: Students Must Agree on Why They Are Having Sex

The federal government has ended its four-year
investigation of Ohio State University, which was suspected of
committing various gender bias crimes in violation of Title IX. OSU
reached a settlement with the Department of Education’s Office of
Civil Rights—an agency currently probing 78 other colleges over the
same allegations—and
agreed to improve upon its shortcomings related to how the
university reports sexual assault. From
Inside Higher Ed:

During the investigation, Ohio State established a “one-stop” Title IX webpage and
office, formed a sexual violence consultation team that meets
bi-weekly, and developed online training modules about bystander
intervention. The university also made “substantial improvements”
in how it documents sexual assault investigations, the department
said. “The university will maintain comprehensive documentation of
its receipt, investigation, and resolution of all oral and written
complaints, reports or other notice of sexual harassment,”
according to the
resolution agreement. Previously, the department had found that
Ohio State had failed to keep clear and consistent records of cases
of sexual violence, and the office had trouble even telling if some
cases had been addressed or not.

DOE praised OSU for how it handled the big complaint, which was
sexual harassment within the marching band. According to the
details of a complaint against the college, Marching Band Director
Jonathan Waters presided over a culture of gratuitous sexual
harassment and sex-based hazing. OSU fired Waters in July. Read the

full complaint here—there is some truly gross conduct, and
ample evidence that Waters knew what was going on.

A separate aspect of the settlement is drawing the ire of some
civil libertarians, however. OSU agreed in the resolution to
establish clear definitions of what constitutes consensual sex.
It’s not entirely obvious whether the definitions listed here are in line
with the resolution yet, but they already seem troubling. According to
OSU, participants in sexual activities must agree “why” they
are having sex:

• Effective consent can be given by words or actions so long as
  the words or actions create a mutual understanding between both
  parties regarding the conditions of the sexual activity–ask, “do
  both of us understand and agree regarding the who, what, where,
  when, why, and how this sexual activity will take place?”

That’s absurd, as Hans Bader, a senior attorney at the
Competitive Enterprise Institute and a former OCR lawyer,
writes:

At Ohio State University, to avoid being guilty of “sexual
assault” or “sexual violence,” you and your partner now apparently
have to agree on the reason WHY you are making out or having
sex.  It’s not enough to agree to DO it, you have to agree
on WHY: there has
to be agreement “regarding the who, what, where, when, why, and how
this sexual activity will take place.”

There used to be a joke that women need
a reason to have sex, while men only need
a place.  Does this policy reflect that juvenile
mindset?  Such a requirement baffles some women in the real
world: a female member of the U.S. Commission on Civil Rights told
me, “I am still trying to wrap my mind around the idea of any two
intimates in the world agreeing as to ‘why.’”

Bader also notes that OSU misinforms students about alcohol
levels and consent. Its website cryptically describes consent as
invalid when the person “is so intoxicated or unconscious due to
alcohol or drugs.” Well, how intoxicated is
so intoxicated? An intoxicated person can absolutely
consent to sex; only an incapacitated person cannot, by
definition, give consent.

Only 78 more universities to go. Read more from Reason
on college sex
here.