Mistaken hug by disabled student leads to suspension for ‘sexual assault’

Mistaken hug by disabled student leads to suspension for ‘sexual assault’

Campus hysteria about sexual assault may have claimed another victim, judging from a news report by NBC 5 in Dallas: “Brian Ferguson, a  20-year-old autistic student, has been suspended from special-needs classes at Navarro College in Texas for mistakenly hugging a woman he did not know and kissing her on the top of her head, according to the student’s mother, Staci Martin. She said, ‘And then they labeled it “sexual assault” because of the kissing,’ Martin said. ‘They said a kiss is considered an assault.'”

As Reason Magazine and College Insurrection noted, “Ferguson’s actions aren’t really any worse than the vice president’s creepy kissing of a little girl last week.”

This sort of overreaction illustrates how the ever-expanding definition of campus “sexual assault” apparently reaches well-meaning conduct that is not sexually-motivated at all, and does not even involve intimate areas of the body, much less sex.  The harsh treatment of this autistic student may also lead to a lawsuit against it under disabilities-rights laws like the Rehabilitation Act or the Americans with Disabilities Act.

It also is a reason to oppose “affirmative consentrules that require advance permission for not just sex, but also ordinary touching and kissing, and classify any failure to obtain an “agreement” in advance as “sexual assault” (even if it was not against the will of the complainant at the time it occurred).

“Affirmative consent” activists now want to extend such rules micromanaging commonplace interactions into the nation’s Kindergartens to cover even non-sexual contact, such as “unsolicited hugs” by a child.  They also are urging the American Law Institute to revise the Model Penal Code to criminalize “sexual contact” or sex without affirmative “consent,” even though they admit on page 69 of their draft rewrite that doing so would outlaw some “passionately wanted” encounters.

Sexual assault policies and laws should protect people from violence and unwanted intimate invasions, not relatively harmless activities that simply lack advance authorization. But as Reason Magazine notes, “unfortunately, with the affirmative consent movement on the rise, more and more students will soon be grappling with a definition of sexual assault that no longer squares with real life.”

It may be that Navarro College perceived its draconian policy as being somehow necessary to appease “affirmative consent” activists, or the Obama administration.  (Under Obama, the Education Department has cracked down on colleges in a way that critics argue violates students’ due process rights and the federal Administrative Procedure Act, prejudges students’ guilt, and flouts court rulings limiting the reach of Title IX.)

But draconian punishments of students can sometimes violate Title IX or other laws. For example, if a college scapegoats an accused male student to appease Obama administration bureaucrats, that is not a legal defense to his lawsuit challenging his discipline, and may actually violate Title IX, as Judge Spiegel made clear in Wells v. Xavier University (2014).

The recent panic over a supposed campus “rape culture” overlooks the fact that the sexual-assault rate has fallen over the last two decades, both on campus, and in society generally. Thankfully, rape is less frequent than it once was. Moreover, college students are actually much less likely to be raped than young people who don’t attend college, as a recent study by the federal Bureau of Justice Statistics demonstrates.  That study suggests that less than one percent of college students are raped.

Hans Bader

Hans Bader

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department. Hans writes for CNSNews.com and has appeared on C-SPAN’s “Washington Journal.” Contact him at hfb138@yahoo.com


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