Prominent college sexual assault consultant Brett Sokolow has made a lucrative business out of advising both alleged victims and accused rapists on college campuses. Last week, he startled some victim's rights activists by defending the latter, warning that more and more male college students are "simply being punished" for having drunken sex.
Sokolow, an attorney and executive director of the Association of Title IX Administrators (ATIXA), told readers of his regular "Tip of the Week" newsletter that he had noticed a troubling trend in which male students were being discriminated against "because their partners are having sex too and are not being subject to the code of conduct for doing so."
"In the last two weeks, I've worked on five cases all involving drunken hook-ups on college campuses," he wrote. "In each case, the male accused of sexual misconduct was found responsible. In each case, I thought the college got it completely wrong."
"Why should only the male be charged if both students behave in ways defined as prohibited by the policy?" he asked. "I'm not suggesting we charge both. Surely, every drunken sexual hook-up is not a punishable offense, especially if the parties know what they did and liked it."
The April 26th newsletter, titled "SEX AND BOOZE," garnered Sokolow a mention in Wall Street Journal columnist and widely noted "serial rape apologist" James Taranto's "Best of the Web" roundup, and praise from various men's rights bloggers.
"Yikes! Brett Sokolow, the undisputed leader of the sexual grievance industry with respect to American colleges, is sounding like COTWA," wrote the Community of the Wrongly Accused. "Sokolow's comments are disturbing because they show that too often, colleges kowtow to a feminist tyranny that wants to punish men."
Sokolow's comments are a far cry from the message sent by Vice President Joe Biden this week in the unveiling of a White House task force report on combating campus rape. Biden spoke at length about the role men must play in curbing college sexual assault.
"It doesn't matter what clothes she was wearing, whether she drank too much, whether it's in the back of a car, in her room, on the street — it does not matter," Biden said. "It does not matter if she initially said yes and then changed her mind and said no. No means no, whenever it is stated."
Victim's rights advocates told BuzzFeed that Sokolow's newsletter was concerning, given the stigma rape survivors often face from both campus conduct hearings and state courts when they come forward, especially if they were intoxicated during their assault.
One in five women is the victim of sexual assault in college, according to a 2007 study commissioned by the National Institute of Justice. The White House task force says that just 12% of those attacks is reported. Colleges rarely severely penalize students who are found guilty of committing sexual assault, according to a 2010 investigation by the Center for Public Integrity, which found that only 10 to 25% of students found "responsible" for sexual assault were permanently kicked out of school. Recent research has found that the rate of false reporting for sexual assault is in the range of 2 to 8%.
Survivors sometimes don't even identify sexual assault as what it is because they are told that they somehow participated in consensual sex due to their behavior, said Denice Labertew, director of advocacy services for the California Coalition Against Sexual Assault.
This is a particular problem on college campuses, she said, "as college communities can be incredibly insular and coming forward to make a report, even to the college counselor, would require them to risk the entire college community knowing about the assault."
Sexual assault charges are "not to be taken lightly," said Connie Kirkland, director of student mental health and behavior at Northern Virginia Community College.
"Investigations occur. Questions are asked. A decision is rendered based on the preponderance of the evidence," she said. "If both parties 'liked it,' there would not be a complaint made."
The federal gender equity law Title IX defines sexual violence as "physical sexual acts perpetrated against a person's will or where a person is incapable of giving consent due to the victim's use of drugs or alcohol." The 2011 "Dear Colleague" letter the Obama administration sent to colleges and universities warning them of their obligations under the law recommended that schools send the message that drug and alcohol use "never makes the victim at fault for sexual violence." Most state laws are also clear that a person cannot give consent unless he or she is sober.
Sokolow is just one of a growing number of consultants who advise colleges and universities on how to handle sexual misconduct on campus. He's president and CEO of The National Center for Higher Education Risk Management (NCHERM) Group, a law and consulting firm that serves as an umbrella for eight linked organizations, including ATIXA.
According to its website, the NCHERM Group represents 35 colleges and universities as outside counsel, making it one of the largest higher education-specific law practices in the country. Sokolow says the NCHERM Group has served more than 3,000 campuses since 2000, and that ATIXA has over 1,400 members and has certified more than 2,000 Title IX Coordinators and investigators since 2011.
This is not free advice. ATIXA, for example, costs $599 per person to join (or $2,499 per campus) a year. An upcoming "best practices certification course" costs non-members $1,599. Schools can save on membership rates and a variety of other services by purchasing "bundled" subscriptions offering access to multiple NCHERM services; a "level three" bundle is $11,500 a year, and that's at a 20% discount. NCHERM puts on training seminars and conferences for administrators; one for Title IX coordinators cost $2,500 a head and grossed $425,000, according to Philadelphia magazine.
Sokolow said in an interview with BuzzFeed that while he switches back and forth between defending accused victims and attackers, he has always been consistent.
The campus policies he referred to in his newsletter were based on "intoxication" rather than "incapacitation" and thus flawed, he said. In some cases, the hearing panel was biased against the male student; in the other, the panel "jumped to the conclusion" that the complainant was incapacitated, a common issue, he said.
"I don't think these women are making false accusations; they are making accusations of things they believe happened to them and they believe are violations of policy," he said. "But just because someone thinks they've been victimized doesn't make it so."
As part of its initiative, the White House released a public service announcement this week starring what Biden called "men that young men admire," in which "macho" actors along with President Barack Obama tell men to intervene if they are bystanders to sexual assault. But Sokolow thinks "the binary of male as initiator and female as recipient is gendered and antiquated."
But 99% percent of rapists are men. And it is the obligation of anyone initiating a sexual act to know if the other party is consenting and is capable of consenting under the law and Title IX, said S. Daniel Carter, director of non-profit campus safety initiative 32 NCSI.
"Any responsible discussion of alcohol and sexual consent needs to include a discussion about that obligation," he said.
But Sokolow isn't afraid to ruffle feathers — or align with the men's rights crew.
"Progress requires taking people out of their comfort zones sometimes, and I hope people challenge me, and challenge their own conceptions and preconceptions about how these cases should be handled," he said.