Monday, May 08, 2006

Rethinking feminism: Consent

Guest post by Aspazia of Mad Melancholic Feminista

(Ed. note: This post is part of Aspazia's excellent "Rethinking feminism" series at her blog. This is the second post we've featured here at The Reaction. You can find the first, on poverty and health care, here. -- MJWS)


I cannot resist writing about college conduct policies, specifically what constitutes consent in sexual relations. While at some point in the future, I might very much like to write a piece where I compare various college "consent policies," today I will write what I know. My own college policy reads as follows:

The Director of Student Rights & Responsibilities receives all incident reports and refers cases to the appropriate investigators and hearing bodies. Charges of misconduct which, in the judgment of the Director, could lead to separation from the Institution (Suspension or Expulsion) will be handled through the formal hearing process which will include the Student Conduct Review Board. Factors to be considered will be the present demeanor and past disciplinary record of the offender, as well as the nature of the offense and the severity of any damage,injury, or harm resulting from it. Repeated or aggravated violations of any section of this code may also result in expulsion or suspension or in the imposition of such lesser sanctions as may be appropriate.

1. Sexual Misconduct
Sexual Misconduct is defined as a threat of a sexual nature or deliberate physical contact of a sexual nature without the other person's consent. Examples of such behavior include, but are not limited to, 1) deliberate or reckless threat, actual or implied; 2) physical contact of a lewd type such as brushing, touching, grabbing, pinching, patting, hugging, and kissing; 3) physical contact of a sexual nature that results in reasonable apprehension of a sexual assault or physical harm; and 4) coerced sexual activities, including rape.

All sexual interaction between any two people must be consensual. Each individual has a responsibility to obtain consent before engaging in sexual interaction. Consent is defined as the act of willingly and verbally agreeing (for example, by stating "yes") to engage in specific sexual conduct. If either person at any point in a sexual encounter does not give continuing and active consent, all sexual contact must cease, even if consent was given earlier. A person who is impaired by consumption of alcohol or drugs is considered unable to give consent.

To initiate sexual contact with someone whose judgment is impaired by alcohol or drugs, who is unable to give verbal consent (sleeping or unconscious), or who is threatened, coerced, or intimidated is a violation of Code of Conduct. To coerce a person to consume alcohol or other drugs for the purpose of inducing sexual activity is a violation of the Code of Conduct.

Students are reminded that the conduct covered in this policy may also result in criminal prosecution under the laws of the Commonwealth of Pennsylvania. It is the practice of the College to encourage all persons reporting a serious violation of this policy to also report the incident to the local authorities.

I have highlighted what I think are two very important aspects of this policy, and why our college policy ends up failing truly to protect our campus from rape. First of all, the behavior included in the definition of sexual misconduct (which is, btw, our college's clever way of renaming sexual assault or rape) -- physical contact of a lewd type such as brushing, touching, grabbing, pinching, patting, hugging, and kissing -- is behavior that is quite typical and normal in most sexual relationships. The phrase, however, includes the word "lewd," which is purposely ambiguous. It allows the jury not to find a student guilty of sexual misconduct if it believes that he or she was not lewdly doing these behaviors. And yet, it's not clear what counts as lewd kissing or lewd touching. What special extra behavior or words need to be present in order to demonstrate that someone was not being lewd or that someone was being lewd when kissing another student?

For example, let's say that a very well brought up, gentlemanly student -- let's call him Kurt -- has been dating his girlfriend for three months. So far their dates have consisted of hand-holding (without getting verbal consent, btw), going out to campus events together, and attending a formal. Our couple has not yet kissed, slept in the same bed, or engaged in any "petting". One night after the formal, Kurt is walking his girlfriend -- Lana -- back to her dorm room, and Lana grabs Kurt behind the neck, draws him closer to her, and begins to kiss him like he has never been kissed. Before he knows it, Lana has put her tongue in Kurt's mouth and he is shocked by how forward and lewd this behavior is. Kurt has every right to file charges against Lana for sexual misconduct in this case. What the jury will have to decide is if Lana was being lewd or not.

Now for another example: let's say that Sally -- a self-possessed, friendly trickster -- walks by Sam, a boy on her floor, who has just left the shower and is wearing nothing but a towel. She runs up behind Sam and pinches his bare bottom. Sally has just violated Sam with this lewd pinching, right?

I chose these two innocuous examples to get at what is problematic about a conduct code like this, why I think such a code is a betrayal of feminism. I will then explain how a college like mine actually uses this code.

What is Problematic About this Code

First of all, this code allows the campus to suspend students for the behaviors listed above. Each of the scenarios I illustrated is an instance of not getting verbal consent, and thereby the student should be found responsible for sexual misconduct. If and when such a student is found responsible, the charge will be placed on his or her record and must be disclosed to many post-graduate jobs, graduate schools, or fellowships, like the Peace Corps. Perhaps what is more upsetting, however, is that when a student rapes another student, he (or she?) is found responsible for sexual misconduct, the same charge that would be applied to the two other cases above. Sure, rape might be the fourth level of sexual misconduct, but the sentencing seems to be the same for levels 1-4.

The students are taught this code the first week of new orientation. We break men and women up into two different groups and go over the code. Each time I have participated in this, students have peppered me with lots of questions. In particular, the women have pointed out that the examples taught of sexual misconduct are always men preying on drunk women. And they wonder if this code puts the onus on the boy to get verbal consent rather than the woman. I have never had a satisfactory answer to this. The last two levels of sexual misconduct -- (3) physical contact of a sexual nature that results in reasonable apprehension of a sexual assault or physical harm and (4) coerced sexual activities, including rape -- have often struck many of the young women students that I am educating as likely to find only men guilty of sexual misconduct rather than women. I wasn't sure I necessarily agreed, until I sat through my own Student Conduct Review Board (SCRB) hearing. During that hearing, where two students who had been dating and engaging in regular sexual activity (except intercourse), the female student was found in now way responsible for violating the sexual misconduct policy even though she admitted to initiating much of the activity and hadn't gotten his verbal consent at any point of the sexual experience.

This Code is a Betrayal of Feminism

What I find insulting about this conduct code, and the way that the SCRB board enforces it, is that it suggests that women are helpless, passive, sexual victims. First of all, many of the behaviors that constitute "sexual misconduct" are so ambiguous as to make a mockery of the seriousness of sexual assault. This code threatens to teach women to adopt a rather puritan, Victorian view of their sexuality, rather than embolden them to embrace and own their sexuality. If you don't want a boy to kiss you, then tell him to stop and walk away. Women are perfectly capable of setting boundaries around what is acceptable sexual behavior and speaking up when they don't want to do something. Women are, after all, moral agents, aren't they? Do we want to assume that anyone who makes a pass is violating something sacred? Good lord, do we want to perpetuate that sort of view of our personhood?

These policies are deeply protectionist in nature. They regulate all sexual action because they assume -- IMHO -- that male sexuality on college campuses is predatory and women are at great risk the minute they get here. The justification for such a protectionist conduct code is that you have a great deal of problems with rape and sexual assault on campus. That is absolutely true. But this code doesn't really get to the heart of the culture that leads to higher instances of rape and sexual assault. The woman who is raped at a fraternity party is not going to go forward to College Life and then face the man (men) who assaulted her in a kangaroo court, where the social consequences of outing the rapists are massive. Women who are raped generally never go forward and report what happened, especially on a college campus where their friends might side with the rapist to maintain good relations with his fraternity. These women rarely get a rape kit, or press charges with the local police. Many of the female students who are raped or assaulted on my campus are, oddly, not even sure if they were assaulted or victimized, because after all they were drunk, dressed in a sexy way, and at a party. (See the Happy Feminist on this issue.) This code is far more likely to produce false positives, especially since no real investigation takes place.

I used to get annoyed by male students who would tell me that their deepest fear is to be falsely accused of rape. I would point out to them, over and over again, how rarely women who were raped go forward. I pointed out how horrific rape cases are for victims. And all of that is true. But then I saw first hand my first false accusation case. And I learned exactly why men are terrified by false accusations. I don't think that they occur a lot. Nor do I think that this problem is more pressing than actual rapes (don't put me PLEASE in the MRA camp!). But it is a fact that we have created college policies and employment policies that make it easy to get an accused off campus or off the work premises without any real investigation. Once a student is accused, his reputation is forever ruined; there is no innocence until proven guilty. While the credibility of rape victims continues to be a serious issue (e.g., the Duke case), our policies to give more credibility to women victims has made the mistake of leading to a great deal of false accusations.

I would applaud a serious effort on the part of my college to challenge the institutions -- sports teams and fraternities -- wherein sexual assault of women seems like a rite of passage, but the fact is that the college, deep down, doesn't really want to do that. Why?

If we want to take rape and sexual assault seriously on campus, then we need to convict rapists, we need vigorously to challenge sexist practices -- which are often part of sports team or fraternity hazing. If we establish a kangaroo court to get men falsely accused of rape off campus ASAP, without really investigating what happened, then we are making a mockery of any rape trial. You don't correct the past sins of not believing rape victims by wholly believing any claim that any woman makes against a man on campus.

How the College Misuses the Policy

All colleges are required to report the number of rapes, assaults, and thefts that occur on a campus. This information has to be made available to prospective students and their parents. And no college wants to report the real number of rapes and assaults that takes place. The conduct code in place allows them to rename what happened as sexual misconduct. This prevents the charge from being an actual felony or crime according to the Pennsylvania code. The conduct code also makes it easy to get any student who has been accused of rape off campus immediately in order to protect the college from any liability. So the code is not designed really to punish students and send a serious a message that rape and sexual assault is not tolerated. It is a code designed to make it easier for the college to CYA.

There are no due process protections in place in this system. The hearing board is comprised of people hand-picked by the same office that writes and enforces the code. Moreover, whether a student has actually raped another student or has just failed to get verbal consent before kissing his girlfriend, the student gets to return after having been dismissed for a semester. If the student actually raped another student, the college doesn't call it a rape, because to do so would mean it would have to disclose this statistic, hence bad P.R.

I am even cynical enough to believe -- how sad is this -- that the college is happy to take cases where it is clear that the young man did not rape the student, because it knows the local borough won't press charges, and hence because this case will never make headlines. It gets the male student off campus quietly, satisfying the parents and preventing a P.R. headache that might deter future students from attending the college.

This post is part of my rethinking feminism series because it highlights to me the ways in which institutions adopted what seemed to be "feminist friendly" policies only to serve their self-interest and not actually to prevent rape or sexual assault. My college has instituted an incredibly protectionist policy that most conservatives would lambaste as the legacy of the P.C. era, but I believe there is something far more nefarious afoot. While the subtext of this college policy does suggest a 2nd wave view of woman's sexuality as passive and helpless to men's predatory sexual behavior, that is not the real problem with the code (although I do find it insulting). The real problem is that the college adopted this "feminist friendly" code ultimately to keep its rape statistics low and to protect itself from liability -- either angry parents or the federal government. This policy does nothing to create a campus that is more respectful of women, nor does it promote healthy self-image and sexual behavior.

While conservatives love to point to codes like this as the fascist excesses of the femi-nazis, I think these codes work against the important democratic principle of transparency. The real problem is that we allow college campuses to ignore due process protections in order to improve their "image". And the college doesn't actually want to take on the fraternities or sports teams, since it is precisely these college institutions that attract so many men -- willing to pay high tuition costs -- to a liberal arts college. We need these men, and so we aren't going to reform these institutions in a way that will turn away potential applicants to the college.

So, to you conservatives out there reading this, you should be offended by these policies because, frankly, they aren't fair. To feminists, you should be pissed off because they aren't really in place to make your campus safer.

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  • i completely agree with with you it does'nt sound fair at all just to ask how many accused rapists are in fraternities?

    By Anonymous Anonymous, at 1:20 AM  

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