Duke’s sexist sexual misconduct policy
April 14, 2010
by Cathy Young
The Boston Globe
Four years ago, Duke University became the center of a national controversy about sexual assault, wrongful accusations, and campus politics when four lacrosse players were falsely accused of raping an exotic dancer at a party. Now, Duke is back in the news with a campus policy that ostensibly seeks to prevent sexual assault - but, in fact, infantilizes women, redefines much consensual sex as potentially criminal, and does a grave disservice to both sexes.
The policy, introduced last fall but recently challenged by the Foundation for Individual Rights in Education, co-founded by Boston attorney Harvey Silverglate, targets "sexual misconduct'' - everything from improper touching to forced sex. Some of the examples given in the text of the policy, such as groping an unwilling woman's breasts, are clearly sexual offenses not just under university regulations but under the law.
But the policy's far-reaching definition of sex without "affirmative consent'' covers much more. Unlike the notorious Antioch College rules of the 1990s that required verbal consent to every new level of intimacy, Duke's policy recognizes non-verbal expressions of consent. However, it stresses that "consent may not be inferred from silence [or] passivity'' - even in an ongoing sexual relationship.
What's more, consent can be invalidated by various circumstances - not just obvious ones such as being threatened or unconscious, but also being intoxicated to any degree, or "psychologically pressured,'' or "coerced.'' The latter is an extremely broad term, particularly since the policy warns that "real or perceived power differentials . . . may create an unintentional atmosphere of coercion.'' As FIRE has noted, a popular varsity athlete may face a presumption of coercion in any relationship with a fellow student.
Meanwhile, women, the default victims in the Duke policy, are presumed passive and weak-minded: Goddess forbid they should take more than minimal responsibility for refusing unwanted sex. In one of the policy's hypothetical scenarios, a woman tells her long-term boyfriend she's not in the mood, but then "is silent'' in response to his continued non-forcible advances; if he takes this as consent and they have sex, that is "sexual misconduct.'' Why she doesn't tell him to stop remains a mystery.
The man's behavior may be inconsiderate. However, adult college students have no more of a right to be protected from such ordinary pressures in relationships than, say, from being cajoled into buying expensive gifts for their significant other.
Most insidiously, under the new Duke policy the "offender'' may face sanctions even if the "victim'' doesn't think she is one. If a woman has a sexual encounter she regrets and tells a friend who decides she was coerced, the friend's third-party report can trigger an investigation. And if she tells a dorm adviser or a women's center staffer, they are obligated to report the incident.
About 15 years ago, as an undergraduate, a friend of mine was talked into a one-night stand in a situation some would call coercive: the man was a graduate student, and she felt somewhat intimidated by his intellectual brilliance. She went to a campus counselor hoping for advice on developing her assertiveness skills - only to be told that she had been assaulted and should not blame herself. My friend was frustrated and angry: in her view, the counselor was not only being unhelpful but telling her how to interpret her own experience. Imagine how much more betrayed she would have felt if the counselor had been compelled to initiate proceedings on her behalf.
The policy has other questionable aspects. While such offenses as theft or assault are judged by a panel of three students and two faculty/staff members, sexual misconduct charges are to be heard by two faculty/staff members and one student; perhaps a jury of one's peers cannot be relied upon to enforce the party line.
Sexual violence and abuse is a real problem on college campuses; so are attitudes that, sometimes, still condone such behavior. But a pseudo-feminist sex police that turns a large percentage of students into either criminals or victims - and, in the process, trivializes real sexual violence - is hardly the solution.