Several colleges are debating "affirmative consent" policies, where all sex is considered rape unless both parties actively, enthusiastically consent to each stage. Many people support these policies (now law in California schools, statewide), because we have to do something about sexual assault, and this is something. Others say the policies presume guilt, hold a narrow view of sex, and do nothing about malicious assault. Well, Tim's story is a case where he didn't get that consent, but he kept going purely because he didn't get a hard no either.

It was summer, between semesters. The man we're calling "Tim" and his college friend we'll call "Vicky" went out for the night to a couple of bars. (Note: They both attend a Catholic school -- we're just offering that as background.) By 1:30 a.m., they were back at her place, sprawled on the couch and watching DVDs. He started rubbing her back. Thus began the "absolute biggest mistake" of Tim's life.

According to Tim, his hands moved down to the seat of her jeans. Sensing no objection after some tentative rubbing, he then reached inside them. At one point, she shifted, perhaps toward him. He rubbed her breasts next, over the shirt, then under the shirt, then under the bra, receiving no objection at each stage. She faced the TV, so, he says, he couldn't see her eyes for most of this. When he could, they were closed, but this didn't worry him; he closed his for a while too. This all went on for an hour or so.

This is not a unique set of non-repeatable events; it's actually frequent enough that it's the exact premise of this P.S.A.

"Even at the time," he says, "I knew that she was religious and that she would never engage in any sort of sex with me. She was a good girl. ... I would have never done anything that I thought she didn't want. I also realize that last part makes me sound like a lot of rapists."

The reality is that Vicky didn't respond because she awoke to Tim touching her and then froze in fear until he finally got up to eject the DVD. If you find this petrified reaction baffling, we're guessing you don't spend much time with potential partners vastly stronger than you. And if that's because you're a male, take a moment and go ask the nearest female if she understands.

Tim hugged Vicky before he took off, and back in his room, he texted her, complete with a smiling emoji. The next day, one of her friends approached him and told him, much to his surprise, that people had gone to jail for doing what he'd just done.

After two weeks, during which he avoided contacting Vicky at her request, Tim got an email from the university saying they were launching an investigation. At the first meeting, he learned that all possible punishments, including expulsion, were on the table. "Apparently," he says, "two students acting outside a university function, off university property, are still under their jurisdiction."

That's less scary than a visit from the cops but can actually turn out worse. You see, while the police can send you to jail, they also have a much higher burden of proof ... and you actually get a lawyer to defend you. If you're accused of a crime in college, don't count on getting to appeal or refute evidence. Faculty from law schools are now even criticizing their own universities' policies as unfair to the accused, and some students are starting to hire attorneys and sue colleges for violating their due process rights.

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So if this seems like a far worse idea than letting established legal institutions
handle things, that's because it is.

And rights have to extend to both the accuser and the accused. Even if there is no vast false-rape epidemic sweeping the nation, some accusations are false, as Rolling Stone and others uncovered with Mr. Bean-esque clumsiness. Some students have even had to produce video footage to prove their innocence or were expelled even though juries found no evidence against them. It's tempting to assume guilt when the crime's really, really bad, but that goes against every good legal standard out there -- and, incidentally, doesn't deter further crime. That is the paradox: Society has a long history of ignoring rape victims, but responding with a process that convicts innocent people just delegitimizes all future convictions and the system as a whole.

Now, wrongful conviction wasn't an issue for Tim, who actually did what he was accused of -- he and the victim were telling the same story. But without a lawyer, who was arguing on his behalf when it came to punishment? Someone in the administration was, hopefully. Tim sure wasn't. All he could do was wait.

Tim said all this gave him "a subconscious mindset," cuing him in to what may or may not have been on the table for later on. Tim doesn't, however, say any of that gave him permission to plow forward after making the first move. At no point did he tell investigators, "She was asking for it." But if he'd wanted to tell that lie, he could have, and a lawyer representing him might have, which is one reason taking this to a courtroom wouldn't have been pleasant for all parties.

Now, when you read that first paragraph, do any of you find yourselves getting angry at Vicky? Do you feel like she had "led him on"? We're betting lots of you do, judging by the hate mail and comments that pour in literally every time a woman accuses a man of date rape. That impulse is why sexual assault victims are so afraid to speak out -- if the perpetrator has a reasonable-sounding excuse, then the rage gets focused on the victim. "How dare you put him through this?!?!"

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And it's not just men doing the victim-blaming.

And you know what? That's fucking insane. Even if what he did was purely a case of misreading the signals, a victim can still be traumatized by it. If you're a guy and find yourself sneering at this, picture yourself in the same situation -- not as a woman, but as yourself. Say you're hanging out with a friend who happens to be a much bigger, stronger guy. You're having a good time, you fall asleep in the same room with him, only to wake up with his hand down your pants. Maybe he's doing more than that, if it helps you get the picture. Even if he just badly misread the signals, does it make you feel less violated?

When we first talked to him, Tim actually suggested we leave some details out of the article, such as the sex shop bit, saying, "I don't ever want someone to say [Vicky] was OK with what happened or that she was asking for anything." He knew your mind might go there, and we're telling you, the guy who actually assaulted her disagrees with you.

Once more in large letters, just so we're absolutely clear on the matter.

There are also dozens of cases where the government stepped in after the fact and investigated colleges for letting suspects off (perhaps to rape again) and cases where the alleged rapists are proven to be liars but the district attorney fails to bring charges because the college bungled the investigation. Remember: The college is always going to have some motivation to look out for its own reputation.

So, Tim's college checked for a preponderance of evidence against him (this is multiple bars lower than a criminal case's "beyond a reasonable doubt" standard). Under that burden of proof, they decided he was guilty of sexual misconduct ... but as punishment they gave him something we'll call "disciplinary scolding." Know how you get probation when they don't want to give you a real punishment? You get disciplinary scolding when they don't want to give you real probation. The college never made the incident public and would explain the offense as "very minor" if anyone ever noticed the mark on his record. Meanwhile, if he'd been found guilty under state law, it would have been a class 1 misdemeanor, with a $1,000 fine or up to a year in prison.

dispatch.com
"Disciplinary scoldings" have also been used by colleges for other violent crimes, including
robberies, assaults, and a stabbing death.

We're not saying the state punishment would have made sense in this case. We're not even saying the college got it wrong -- after hearing everything, maybe you'll be impressed with how they handled it. Still, imagine being the victim: You report the incident despite your fear of coming forward, you spend weeks in the process (including telling the story to strangers, over and over, complete with all the intimate details), and this is the result.

"In my mind," says Tim, "I had been tested and had failed miserably. Why should I not go to hell for what I did? ... You spend your whole life thinking about the monsters who would hurt someone like that, and then you find out you are one of those monsters. There was no excuse, no escape from what I had done. I was guilty of everything I had been accused of, and there was no one to blame but me."

In case you forgot.

As a Catholic, Tim was supposed to formally go to confession, tell God via the priest what he'd done, and be absolved of his sins. He hasn't, and he doesn't intend to.

"It's not God that I need to be begging for forgiveness," he says. "I believe that only [Vicky] can truly forgive me for what I have done to her. And if she won't, if I have hurt her too deeply for her to ever forgive me, then so be it. I will live with the full weight of what I did for the rest of my life."

Tim said more -- he talked about putting his life together and moving on and coming to terms with whether or not he was a bad person, about how he has found subsequent relationships difficult. But, at some point, that discussion starts playing into this toxic idea that the real victims of college sexual assault are those poor perpetrators who bravely must put it behind them, and that's in no way what we're going for.

Scott Olson/Getty Images News/Getty Images
Seriously.

The point we want to get across here is that we talk about "rapists" like they're a different species, predators lurking among us who must be spotted in advance. And while those people exist (and fully take advantage of all the legal gray areas described above), the reality is that lots of people who commit sexual assault are only a predator for one night, or one hour, and are shocked to find out they did anything wrong. Despite what Tim said above, there is no monster lurking inside them.

These ones are just regular people who grew up believing certain things about sex and are reinforced by a system that seems to silently give in to them.

Ryan Menezes is an editor and interviewer here at Cracked. Follow him on Twitter.

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