The date-rape debate redux

Yes, I know that this blog has been gathering dust for a while, and I’ve kept meaning to come back to it.  I don’t know if I’m back on a regular basis (too much else on my plate right now), but I will try to blog at least part-time.

And I’ll start off with a follow-up to my recent Boston Globe column (April 14) on the new sexual misconduct policy at Duke University.  An excerpt:

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.

On April 20, I received an email from my occasional sparring partner Barry, a.k.a. Ampersand, of Alas, a Blog.  Sayeth Barry (posted here with his kind permission):

Cathy, I have a question about your recent Globe column. Does Duke’s policy actually state, in any way, that women are the “default victims” in the policy?

The policy appears to be written in gender-neutral language, and the examples make it clear that both sexes can be either a victim or a rule-breaker under the policy. So what am I missing?

Excellent question.

First of all, while the text of the policy is officially gender-neutral, the policy requires the campus Women’s Center (along with the Office of Student Conduct) to be notified of all allegations of sexual misconduct.  (See this August 28, 2009 article in the Chronicle, the Duke daily newspaper.)  The involvement of the Women’s Center clearly suggests that the victims are generally presumed to be female.  The Women’s Center was also heavily involved in championing the new policy.

Secondly, is there anyone who really thinks that a man claiming to be a victim of sexual assault because he had sex with a woman while he was tipsy, or because the woman continued to come on to him after he told her he didn’t want to have sex, will be given serious consideration by a sexual misconduct review panel?  I find it very hard to imagine such a complaint eliciting anything but laughter, or perhaps the suspicion that the man is trying to make a political point.

That reminds me: Some years ago while researching an article on the date-rape controversy, I interviewed several people on various college campuses who had some connection to the handling of sexual assault policies and complaints — mostly university officials and counselors.  As a litmus test of sorts, I showed them an article someone had sent to me from a campus newspaper in which the author recounted an experience of “rape” by a girlfriend, consisting of non-forcible but persistent advances to which the author finally gave in.  (The girlfriend began to make sexual overtures after the author told her, while in bed together, that perhaps they should end the relationship.)   Rather to my dismay, almost every person I interviewed agreed that this story was in fact a rape.  (By contrast, every single person to whom I showed it outside academia thought it was ridiculous, and several thought it was a parody.)  The exception was one Women’s Center counselor who looked quite annoyed at first when she was reading the article, and made a comment about how the author was obviously trying to make a point.  Then, as she read on, her expression changed and she said, “Oh … it’s a woman.”  The author was indeed a woman; the counselor had mistakenly thought it was a man, and assumed that this man was trying to make the point that, by some current definitions of rape, women routinely rape men too.

It is also worth pointing out that when ostensibly gender-neutral domestic violence laws began to result in a steep rise in arrests of women, the reaction from most women’s advocates made it very clear that these laws were meant to target only men.  And not just advocates: the mainstream media, too, carried articles about domestic violence laws “backfiring” or having “unintended consequences.”

Finally, the examples used with the policy are revealing as well.   The example with a male victim and a female perpetrator involves clearly criminal behavior (posting online, without his consent, a video of them having sex).  It also involves actions pretty far outside the boundaries of socially accepted behavior.  The same is true of the female perpetrator/female victim scenario, in which a student in a lesbian relationship balks at going as far as oral sex and her girlfriend threatens to “out” her on the Internet if she does not comply.  (In this example, the perpetrator sounds downright psychotic.)  Of the two male perpetrator/female victim scenarios, one also involves criminal and (I hope) very atypical behavior (groping the woman’s breasts in public); but the other — the one I mentioned in my column — is indeed fairly ordinary behavior.  Thus, in the specific instance in which the policy criminalizes the kind of sex that the vast majority of people would consider consensual, it does use a male perpetrator/female victim scenario.

(Many thanks to Barry for pulling me out of my blogging retirement!)

92 Comments

Filed under academia, feminism, rape, sexuality, women

92 responses to “The date-rape debate redux

  1. handworn

    I agree. If a woman is involuntarily drugged on a date and raped, that’s real date rape. If she chose to get so drunk she couldn’t say no, or didn’t want to and then decided to try to get out of the social consequences the next day (or was convinced by those with an axe to grind that it was rape), that’s not rape. Foolishness and bad consequences, sure, but not rape. I think you’d agree, equal rights mean equal responsibilities, especially for one’s own actions.

  2. handworn

    Forgot to check the box getting WordPress to send me site updates, before, so I have to comment again here to do that. Is there an RSS button on this blog somewhere?

  3. Pingback: Alas, a blog » Blog Archive » Cathy Young on Duke’s Sexual Misconduct Policy

  4. Handworn, I don’t see an RSS button, but I think the RSS feed for this blog is https://cathyyoung.wordpress.com/feed/ .

    If she chose to get so drunk she couldn’t say no [...] that’s not rape.

    Do you seriously mean this? Because it’s such an extreme and disgusting view — implying, for example, that it’s not rape to have sex with an unconscious, non-consenting person, as long as that person chose to get drunk and pass out — that I find it hard to believe that anyone would stand up for it in public.

  5. Chris

    Barry is, as usual, completely right. Your original article contained several lies, such as that this policy makes women the default victims, and that the woman in the example did not try and stop her boyfriend. You now seem to be downplaying those lies and splitting hairs rather than taking responsibility for your words.

    The policy also makes it required that men’s complaints of being raped by women WILL be taken seriously, so I don’t understand what your problem is here. The idea that men cannot be victims of rape is an extremely anti-feminist attitude that feminists are trying to change.

    Finally, if you think the example with Angela is “ordinary behavior” in a relationship, I am sorry for you. It certainly isn’t ordinary in my relationship for me to keep pressuring my girlfriend for sex after she says “no” twice, and it shouldn’t be normal for anybody. It’s horrible, disrespectful, destructive behavior.

    I also share Barry’s disgust over handworn’s sick suggestion. By his logic, if someone saw a stranger lying unconscious, they would have every right to then force sex on that person without being accused of rape or any other legal violation. I can’t imagine handworn honestly believes this should be allowed, so he’s probably being intellectually dishonest, rather than just sick and evil. Which doesn’t make him any less responsible for the effect his words might have on anyone reading them who might think “Hey, maybe I really can fuck someone without their consent and get away with it.”

  6. Yam

    “The idea that men cannot be victims of rape is an extremely anti-feminist attitude that feminists are trying to change.”

    Interesting, Chris. Because I’ve seen a number of feminists say that concern about male victims is just “backlash” to be ignored. I guess it’s a pretty selective view that you have.

    Barry’s comments seem a little naive; it IS possible to have gender-neutral rules applied in ways which are anyhthing but.

    Remember how feminists reacted to the Duke lacrosse thing? Not their proudest moment. How memories fade…

  7. Yam, I must not have been clear enough in my post.

    I entirely agree with you that gender-neutral rules can be applied in a non-gender-neutral fashion. If I actually stated otherwise, then it was a misstatement.

    When that happens, however, I’d say that it makes more sense to blame the people who misapplied the rules, rather than blaming the gender-neutral rules themselves, or falsely claiming that the rules aren’t gender-neutral.

    * * *

    I think that “what feminists think of male rape” is the sort of broad claim that doesn’t mean much. Obviously, some feminists have ignored male rape; I once read a broad-based academic review of rape around the world that didn’t mention men as victims once. That was inexcusable, in my view. (I don’t think that male victims need to be part of every single academic study about rape — nor female victims — but a broad review of rape worldwide has to be inclusive.)

    On the other hand, there are feminists who have blogged about and written about male rape victims (me included), and I don’t think they should be ignored, either.

  8. I did, of course, acknowledge in my article that the woman in the Duke policy scenario tells her boyfriend she doesn’t want to have sex. The policy never actually states that she said “no” or “stop” — for all we know, it could be a tentative “I really don’t feel like doing this tonight.” Here, I will break my usual rule of not discussing my sex life in public and say that I’ve had a boyfriend say that to me more than once, and it would have never crossed my mind that there was anything wrong with persisting in trying to get him in the mood, unless I was given a clear and emphatic signal to stop.

    There are several studies showing that especially within ongoing (heterosexual) relationships, men are pressured into sex nearly as often as women. I’m all for taking male rape seriously, and I think it should be taken seriously, but the idea that persistent advances = rape is ludicrous, for men or for women. It’s a bit like saying that if you tell the host at a dull party that you want to go home and she or he nags you into staying (and, let’s say, non-forcefully holds your arm when you head for the door), you’ve been kidnapped.

    As for the suggestion that sex with a woman who is drunk to the point of being “unable to say no” is okay if she got drunk on her own initiative — of course that’s ludicrous and offensive. The problem with the Duke policy is that it does not make a clear distinction between being so drunk that you are physically unable to object to unwanted sex, and being sufficiently tipsy that your normal inhibitions are down.

  9. Oh, and I added an RSS feed button. Thanks for the reminder.

  10. Yams

    Cathy: The problem with the Duke policy is that it does not make a clear distinction between being so drunk that you are physically unable to object to unwanted sex, and being sufficiently tipsy that your normal inhibitions are down

    Of course not, Cathy. That distinction is for the woman to make.

    Nonetheless, I am heartened to see that Barry honestly thinks that men who claim sexual assault will receive the full support and compassion of the Duke Women’s Center. How silly of me to have imagined otherwise.

  11. Chris

    “Here, I will break my usual rule of not discussing my sex life in public and say that I’ve had a boyfriend say that to me more than once, and it would have never crossed my mind that there was anything wrong with persisting in trying to get him in the mood, unless I was given a clear and emphatic signal to stop.”

    Saying “No” is not a clear and emphatic signal to stop?

    Anyway, if one actually succeeds in getting one’s partner “in the mood” after they’ve said no the first time and before initiating sex with them, then of course that isn’t rape. But hypothetical Angela’s behavior is obviously not that of someone who has gotten into the mood. It’s more like the behavior of a victim who is disassociating from her situation out of fear.

    It’s true that the policy does not make it clear when a lack of sobriety becomes a significant obstacle to real consent, and that could be problematic. I think that was one of Amp’s complaints on his blog as well.

    Yams, I find your concern about not taking men’s complaints seriously a little…well, hard to take seriously, given that you express any problem with Cathy’s complete dismissal of hypothetical Angela’s rape.

  12. Chris

    Sorry, the above should say “given that you DIDN’T express any problem with Cathy’s complete dismissal of hypothetical Angela’s rape.

  13. Nowhere does the hypothetical mention “fear”, or suggest that Angela has reasons to fear violence on Aaron’s part. To suggest that the average woman would be paralyzed by fear because a long-term boyfriend who has, presumably, never exhibited violent tendencies is making persistent sexual advances after she has expressed reluctance to have sex is (1) incredibly demeaning to women and (2) a really twisted vision of male-female relationships.

  14. colagirl

    To suggest that the average woman would be paralyzed by fear because a long-term boyfriend who has, presumably, never exhibited violent tendencies is making persistent sexual advances after she has expressed reluctance to have sex is (1) incredibly demeaning to women and (2) a really twisted vision of male-female relationships.

    Thank you, Cathy. The fact of the matter is, relationships are messy, they are complicated (especially long-term ones), and to attempt to boil very complex situations down to simple dichotomies of “victimizer/victimized” is not only terribly reductionist, but the sort of calculus that is an utter denial of human nature, as well as a denial of everything that can make relationships so wonderful.

  15. Chris

    Cathy,

    You’re right that the word “fear” is never used, but I assume that’s because the people who drafted this example were counting on their readers to have some basic understanding of human social cues.

    The policy does not expect students to be mind-readers, but it does expect them to pay attention to the behavior of their partner. When someone becomes “silent” and “passive” after repeatedly saying they don’t want to have sex, that is an indication that they are afraid–maybe not of “violence,” but of some kind of repercussions if they continue to refuse. It only takes some basic empathy to understand this, however I will point out that I am in a particular position to understand this because both my girlfriend and my cousin were both raped in exactly the same way Angela was, by people who they thought they could trust. And they both told me that they were in a state of fear at the time. Now maybe this fear wasn’t rational–they probably could have kept saying no and even started to physically fight against the men without him fighting back. But when you are about to be victimized, you don’t always act rationally. Do we blame victims of purse-snatchers if they do not run and chase after their victimizer? Do we then say it wasn’t really robbery?

    Also, I love how I am the one being demeaning to women here when you are the one who thinks that silence and passivity = consent. And by “love,” I mean “despise with every fiber of my being.”

    Even more frightening, apparently colagirl thinks pressuring one’s partner for sex and initiating sex without their consent is part of what “makes relationships so wonderful.” Disgusting.

  16. When someone becomes “silent” and “passive” after repeatedly saying they don’t want to have sex, that is an indication that they are afraid–maybe not of “violence,” but of some kind of repercussions if they continue to refuse.

    What rubbish. Most likely, it’s an indication that they feel like it’s not really worth arguing about, or that if their partner really wants to have sex they can go along with it even if they don’t particularly feel like it (something that both men and women do all the time).

    But when you are about to be victimized, you don’t always act rationally. Do we blame victims of purse-snatchers if they do not run and chase after their victimizer? Do we then say it wasn’t really robbery?

    This is a false analogy since it refers to a situation that is by definition criminal to begin with. If we were talking about a woman who passively submits to a man who assaults her in the street, I’d be in complete agreement. By your analogy, if someone solicits a charitable donation from me and persists in asking after I say no, they’ve committed robbery if I eventually give in.

    Incidentally, this blog does not tolerate flames, so if you make any further posts referring to other people’s views as disgusting or despicable, they will be deleted without notice.

  17. I’m trying to understand your position, Cathy. I was wondering what your response to this modification of Angela and Aaron’s story would be?

    Angela and Aaron have been dating for two weeks and have engaged in consensual sexual intercourse once prior to Monday. Monday night while becoming intimate, Angela stops and says she doesn’t feel like having sex that night. Aaron continues to touch her, saying that she got him excited and it wasn’t fair of her to lead him on like that. Again Angela tells him she does not want to have sex, and then is silent. Aaron decides she has given in, and proceeds to have sexual intercourse with her.

    I’ve changed the length of the relationship, but the rest of the example is the same. If you don’t mind answering, can you tell me if this changes your response to the example?

  18. No, it doesn’t, because I still don’t see any plausible reason Angela doesn’t simply get up and walk away, or push Aaron away and ask him what part of no he doesn’t understand.

    The only situation in which I could consider this to be rape would be if Aaron was a near-stranger Angela had, say, just taken home from a party, because then I could see that a woman could have a legitimate fear that he could become dangerous if she repeated her rejection more forcefully.

    Here’s a question for you, Barry: if we reversed the roles so that Angela was the initiator and Aaron was the initially reluctant but acquiescing party, is there any chance in the world that you would consider this rape?

  19. If we reversed the roles in the example given by Duke, then I’d say that Angela’s behavior is scummy at best, and rape at worst.

    (By the way, the word “acquiescing” doesn’t appear in Duke’s example. One meaning of “acquiesce” is “consent,” but I don’t agree that Angela — or Aaron, if we reverse sexes — consented. In short, I don’t acquiesce to the word “acquiescing.” :-P )

    I don’t think it’s too much to ask that people — of both sexes — have consent, either through action or word, before having sex. And the obligation to be certain of consent is increased in a situation like this, where not only does Aaron (or Angela) lack physical or verbal consent, but they’ve in fact been verbally refused.

    Of course, it’s we can imagine that there’s more to this story than what Duke gives us. We might imagine, for instance, that Aaron (or Angela) kept pleading, until Angela (or Aaron) finally said “oh, all right, go ahead already!” I don’t think that’s a description of a healthy sex life, but I wouldn’t say that’s rape, either. But I think that’s projecting more onto the description than we reasonably can.

  20. The policy being worded as it is, it’s actually quite impossible to tell exactly what goes on. Does Angela simply lie there while Aaron has sex with her? Does she physically respond in a way that suggests willing participation?

    (Incidentally, to me acquiescence implies accepting something that is essentially unwanted, so in that sense it’s different from true consent.)

    Given that the scenario specifically says that Aaron thinks Angela has consented, I really don’t see anything worse here (regardless of gender) than a misunderstanding. I also think that, given how subtle and nuanced such interactions are, having them formally adjudicated is a terrible idea.

  21. Chris

    “What rubbish. Most likely, it’s an indication that they feel like it’s not really worth arguing about, or that if their partner really wants to have sex they can go along with it even if they don’t particularly feel like it (something that both men and women do all the time).”

    Cathy, I only have limited experience in relationships, but I’d be willing to bet good money that usually when a situation like what you describe occurs, the originally reluctant partner does not become completely “silent” and “passive.” I mean, they have to be doing something. If they are literally lying still and not making any sound…I just don’t know what kind of person would even want to continue having sex with a person who wasn’t reacting in any way.

    And what it all comes down to is that whatever you think the non-responding partner is “most likely” feeling, you are, again, not a mind-reader. All you have to go on is their behavior. I have already explained to you that I know two people who were in similar situations to Angela, and they recounted that they were completely afraid. Many, many, many other rape victims have expressed that same emotion–something you should know if you are going to make an informed opinion on this subject.

    “No, it doesn’t, because I still don’t see any plausible reason Angela doesn’t simply get up and walk away, or push Aaron away and ask him what part of no he doesn’t understand.”

    Again, the research is out there. The victim’s testimonies are out there. If you “don’t see any plausible reason” for Angela’s behavior (actually lack thereof), then it’s because you haven’t done the bare minimum of research necessary before writing an article on this subject.

    “The policy being worded as it is, it’s actually quite impossible to tell exactly what goes on. Does Angela simply lie there while Aaron has sex with her? Does she physically respond in a way that suggests willing participation?”

    The policy is very clear that she is passive and silent. So clearly, the answer to the first question is yes and the second, no.

    “Given that the scenario specifically says that Aaron thinks Angela has consented, I really don’t see anything worse here (regardless of gender) than a misunderstanding.”

    But it’s a misunderstanding that you are promoting, and it’s a misunderstanding that too often leads to rape. Duke’s policy is designed to warn people before they make this misunderstanding, by telling them to get clear, verbal consent first. I do not understand why you are against this.

  22. I don’t see the word “passive” anywhere in the scenario; it simply says, “and then becomes silent.” I see absolutely nothing to indicate that physical behavior which can be seen as signaling consent (e.g. the woman putting her arms around the man after he starts intercourse, or kissing him) would be a defense to the charge of sexual misconduct. I’m sure the claim could be made that the woman was simply faking a response out of fear. (In the lesbian “rape” story that I mentioned in my blogpost, the “victim” wrote that she eventually faked an orgasm so that her girlfriend would leave her alone.)

    I agree that no normal man is going to have sex with a woman who is lying there like a dead body. Conversely, no normal woman is going to lie there lie a dead body and submit to unwanted sex unless she has reasons to fear for her safety.

    Incidentally, despite your earlier claim that the Duke policy is attuned to subtle social/human cues, the scenarios in the policy read to me like they were written by Martians. Seriously, a man gropes a woman’s breasts at a party and tells her to lighten up when she objects? A woman threatens to out her closeted girlfriend on the Internet unless she agrees to oral sex? People who behave this way belong in a mental institution, not on a university campus.

    But it’s a misunderstanding that you are promoting, and it’s a misunderstanding that too often leads to rape.

    Only if you define “rape” by a standard that would make serial rapists out of an awful lot of women, myself included.

    Duke’s policy is designed to warn people before they make this misunderstanding, by telling them to get clear, verbal consent first. I do not understand why you are against this.

    Fortunately, the Duke policy isn’t quite as bad as that; it does, at least, recognize that physical actions count as expressions of consent. I really can’t think of anything that would kill the moment (at least, for a lot of people) more than stopping in the middle of the mating dance for a clear and rational “consent” discussion. (Even leaving aside the assumption that every sexual act has a clearly defined “initiator” and “receiver.”)

  23. Yams

    Chris: By your standards, I’ve been raped by several different women. About a dozen times.

  24. Yams

    Why do so many feminists sem to think it’s a good idea to steal agency away from women?

    How does that HELP women? How does it help women to steal their agency? How is that good for women? How?

    A sense of responsibility is a tool which helps people function as adults. And, as near as I can figure, feminists do everything in their power to rip this tool away from women. They do everything they can to suppress a woman’s feeling of self-responsibility. WHY, I ask you? How does it assist women if you steal something that helps them function as adults?

  25. Chris

    “I don’t see the word “passive” anywhere in the scenario; it simply says, “and then becomes silent.””

    Well, that’s embarrassing for me. My bad for remembering the wording incorrectly, and for not confirming before I posted.

    However, I still think the context strongly connotes passivity, and I agree with Amp that assuming the woman then gave physical signals that she wanted the sex to continue is a huge leap from the information we’re given.

    Also, you contradict yourself here:

    “I see absolutely nothing to indicate that physical behavior which can be seen as signaling consent (e.g. the woman putting her arms around the man after he starts intercourse, or kissing him) would be a defense to the charge of sexual misconduct.”

    But then you say:

    “Fortunately, the Duke policy isn’t quite as bad as that; it does, at least, recognize that physical actions count as expressions of consent.”

    These two things cannot both be true. If the Duke policy acknowledges that physical actions may count as expressions of consent, then of course this type of consent would invalidate a charge of sexual misconduct. Since no physical actions of consent are mentioned in the example with Angela, and it is used as an example of sexual misconduct, we can assume that no physical actions of consent occurred in this hypothetical. Perhaps this could be written more clearly, but I never claimed the policy was perfect. I do agree with it’s basic underlying principles of what consent is, which you seem to take issue with.

    “I agree that no normal man is going to have sex with a woman who is lying there like a dead body. Conversely, no normal woman is going to lie there lie a dead body and submit to unwanted sex unless she has reasons to fear for her safety.”

    But what is a good enough reason to you? As I have previously mentioned, many women have expressed fear that they later knew was irrational. Did they give true consent?

    “Only if you define “rape” by a standard that would make serial rapists out of an awful lot of women, myself included.”

    If you have repeatedly forced sex on people who did not consent, either verbally or physically, then yes, you are a serial rapist. I doubt you have done this; I am sure your encounters involved at least some kind of physical consent. Angela’s did not seem to, and hers is a sadly common experience.

    You seem to be arguing that because this experience is so common, it cannot be rape. That is a pretty shallow argument; for a very long time in our country, forcing sex on one’s wife wasn’t considered rape, either.

    Back to this, though:

    “Fortunately, the Duke policy isn’t quite as bad as that; it does, at least, recognize that physical actions count as expressions of consent.”

    It does, but it also suggests that verbal consent is the best way to go.

    “I really can’t think of anything that would kill the moment (at least, for a lot of people) more than stopping in the middle of the mating dance for a clear and rational “consent” discussion.”

    Some people say the same thing about putting on condoms. But if you don’t want to take an enormous risk, you may have to sacrifice the mood for a few moments to take the necessary precautions. Besides, a simple “Are you sure?” “Yeah,” takes only two seconds, and a lot of people actually find it romantic.

    “(Even leaving aside the assumption that every sexual act has a clearly defined “initiator” and “receiver.”)”

    Except I never really made that assumption. We’ve mostly been talking about situations like that because that was the situation with Angela. Since both the Duke policy and I recognize physical consent, obviously a situation where both partners are clearly into it is a different circumstance (although it never hurts to get verbal consent anyway).

  26. Chris, great comment.

    Cathy, I’m trying to figure out how much we’re disagreeing on what acceptable sexual behavior is, versus how much we’re just disagreeing on how to interpret the wording of this one particular example.

    Suppose that Duke’s example was worded this way (the bit I’ve added is in italics):

    Angela and Aaron have been in an ongoing relationship for a year-and-a-half and have engaged in consensual sexual intercourse. One night while becoming intimate, Angela stops and says she doesn’t feel like having sex that night. Aaron continues to touch her, saying that she got him excited and it wasn’t fair of her to lead him on like that. Again Angela tells him she does not want to have sex, and then is silent. Aaron decides she has given in, and proceeds to have sexual intercourse with her, even though Angela is being passive and silent.

    Does this change your response to the example?

    I really can’t think of anything that would kill the moment (at least, for a lot of people) more than stopping in the middle of the mating dance for a clear and rational “consent” discussion.

    “Damn I want to **** you.” “Hell yes!” “Oh, like that.” “That feels nice.” Would saying something like that in bed (or in bathroom stall, for that matter) really ruin the whole thing? Because I’ve said and heard stuff like that, and not because of any policy requirements.

  27. And Cathy, please read this comment by Mandolin on “Alas.” You seem to think that it’s abnormal for a girl or woman to ever give in when she doesn’t want to. If that’s your view, you’re just completely wrong.

    (Ditto for a boy or man, btw.)

  28. Chris

    God, that was an awful (yet powerful) comment.

    “it was better to be raped than to be publicly known as being raped.”

    THIS. Both of the women I know who have told me they were raped only did so after a few days of denying to themselves that what happened was wrong. One of them reported it, and went through hell doing so, and the man was never brought to justice. The other one decided not to ever report it to the police after being asked by her doctor, “How could it be rape if you let him into your room?”

    And y’all are just going to sit there and wonder “Gee, why didn’t that girl just DO something?”

    Yams, you know what steals women’s agency? Having sex with them after they have told you “no.” Recognizing that this is a problem and that consent requires more than just non-resistance can only be seen as “stealing women’s agency” to a resident of Bizarro World.

  29. I’ll have to make this brief since I’m working on deadline.

    Barry, with regard to your amended scenario: If the woman is not only silent but motionless and completely unresponsive throughout the encounter, then I would agree that the man has an obligation to stop and make sure she is all right. However, I don’t know how such a thing could possibly be verified.

    With regard to the policy’s acknowledgment that consent can be non-verbal: I assume that in a case such as the Angela/Aaron scenario, the verbal expression of reluctance could only be overriden by explicit verbal consent.

    If a woman has an irrational fear that makes her submit to unwanted sex simply because a man persists with non-forcible, non-threatening advances, I don’t think the man should be punished for her irrational fear. That’s a bit like saying that if someone with an irrational fear of black men hands over all his money to a black man soliciting money for charity outside a supermarket thinking he’s about to be robbed, the black man can be accused of robbery.

    I have never said that women don’t give in to unwanted sex. I recall studies showing that about two-thirds of both men and women have given in to unwanted sex at some point, usually as a result of emotional or social pressure. I simply don’t equate unwanted sex (for either women or men) with rape, and frankly, I think that to see it as some terrible devastating thing is a rather odd attitude reminiscent of very old-fashioned ideas about a woman being “ruined” by illicit sex. (Again, to make it clear, I am not talking about forcible rape but about giving in to unwanted sex that does not involve either force or the threat of force.)

    Chris, I have no idea what happened to the women you know, but I can tell you that a friend of mine was raped by a man who drove her home from a party, and she not only had to run out of her house in her underwear after he fell asleep to get a neighbor to call the police (since she was afraid he’d wake up if she made the call from her house) but had to worry that she would not be believed because she voluntarily let the man into her house and had flirted with him at the party. I remember talking to her after she read an article about the debate on the definition of consent, which included a statement from a woman who said that women often give in to unwanted sex because “it’s easier than to keep saying no.” She told me that she had never felt so insulted in her life — the thought that her experience of being choked, thrown down and having her head slammed against the floor could be equated with someone lacking the assertiveness to rebuff unwanted advances was extremely galling.

    Finally, since I’ve already started down the path of self-disclosure, I will say that many years ago, while in college, I pressured an ex-boyfriend into sex on two or three occasions, with a combination of physical advances and emotional pressure (basically guilt-tripping about our breakup). Basically, I was hoping that if I could just get him to have sex with me one more time he would reconsider breaking up. After the last time, he told me that he was getting sick of this and that I was coercing him into something he didn’t want and didn’t enjoy. A few days later, after getting over the humiliation of being told off that way, I called him to apologize. That’s how grown-ups handle these things.

    I’m definitely not proud of my behavior on that occasion, but the idea that I could have been hauled before a campus disciplinary panel for an official inquisition, and possible sanctions, is appalling to the point of being Orwellian. Of course, that’s a moot point, since the chances of this happening to a female “perpetrator” are probably close to the risk of being hit by lightning. However, I would also hate to be the beneficiary of double standards.

  30. Chris

    “If a woman has an irrational fear that makes her submit to unwanted sex simply because a man persists with non-forcible, non-threatening advances, I don’t think the man should be punished for her irrational fear. That’s a bit like saying that if someone with an irrational fear of black men hands over all his money to a black man soliciting money for charity outside a supermarket thinking he’s about to be robbed, the black man can be accused of robbery.”

    I think that is a flawed analogy. In the examples Amp and I have been talking about, there is no physical action from the victim akin to “handing over” anything; they simply let something happen to them. A more fitting analogy would be if the solicitor put his hands into a person’s pocket, was told “no,” but then continued to take out the victim’s wallet and take money from it, with the victim then becoming still and silent. At this point, if I am not mistaken, the solicitor is legally guilty of robbery.

    Now, if Angela reacted to her “irrational fear” by getting on top of Aaron and having sex with him despite not really wanting to, that would be more similar to your above scenario. But I don’t think anyone aside from some extreme radfems would consider that rape, and I don’t see anything in the Duke policy to indicate that the university would, either.

    Cathy, I am sorry about your friend’s experience. All I will say about that is that different people react to trauma differently, and their reaction to it does not negate their trauma.

  31. Innocent Abroad

    The problem is that, absent bruises, torn clothing or other physical evidence every date rape allegation turns into a “he said, she said” and it is very understandable why a woman would not report it. So long as we have “innocent until proven guilty” we have a rape law that serves the interests of men rather than women.

    I once served on a jury which tried a case of a young black man who was accused of pinching the rears of two young white girls on a London tube train. We found him guilty of the incident which was witnessed and innocent of the other. “Beyond reasonable doubt” and all that. Back in the real world, what we achieved was to tell one black man and two women that we thought they were telling fibs. Bet they all really respect the law now.

    Nah, Duke Univ’s faculty were up to something else entirely. Trying to get their students to do some work instead of thinking about sex all the time. In a similar vein there was once a Warden of Somerville College Oxford (the one Mrs Thatcher went to) who refused to let any pretty girls in. That way she got more Firsts than the other Oxford women’s colleges.

  32. Yams

    So, Chris, any comment to my observation above that, according to your particular definitions of “rape”, I have been raped repeatedly by a bunch of different women?

    (And a great hush fell across the land…)

  33. Yams

    Innocent Abroad: So long as we have “innocent until proven guilty” we have a rape law that serves the interests of men rather than women.

    Golly, we’ve got to do-away with a presumption of innocence then, obviously. What a musty old relic that is! “Innocent until proven guilty”? Pffft! What nonsense.

    We ought to make it so that an accused witch is required to prove that they’re not a witch. That’ll make the process much easier.

  34. Innocent Abroad

    Yams, that is precisely the view of a (female) law officer of the last British government.

    There is no a priori reason that I am aware of that requires all absolute goods to be compatible with each other.

  35. Chris

    “So, Chris, any comment to my observation above that, according to your particular definitions of “rape”, I have been raped repeatedly by a bunch of different women?”

    Yams, have women repeatedly had sex with you without your verbal OR physical consent? Did you say nothing, and not do anything physically (getting an erection doesn’t count) that would indicate you wanted the sex to continue? Did this happen after you had already said “No?”

    Given that you are asking me, sarcastically, if you were raped or not, I’m guessing the answers to these questions are all “no.” Because if this did happen, I am pretty sure you would already know something was wrong. But if the answers are “yes,” then I have no problem saying you were raped.

  36. Yams

    Chris: So… you’re saying you’d find it difficult to imagine me acting that way?

    Hm. Interesting. Now you kind of understand where Cathy is coming from.

  37. Chris

    “Chris: So… you’re saying you’d find it difficult to imagine me acting that way?

    Hm. Interesting. Now you kind of understand where Cathy is coming from.”

    Yams, I am finding it difficult to imagine you, in particular, having acted that way because of your nonchalant and flippant attitude about this whole issue.

    Yes, sometimes rape victims become defensive and deny that there was anything wrong with what happened to them, but that is not what you seem to be doing. You’ve been sarcastically dismissing the experiences of others, not just your own.

    Anyway, in this post you seem to all but admit that you have not acted “that way,” so my estimation of you seems to have been correct. My point stands that if someone had sex with you without your verbal and/or physical consent, you would be a rape victim.

    Again, I do not find it hard to believe that any person would feel afraid if, after saying “no” twice, their partner kept pressing on. I don’t find it hard to believe that they would “let” the sex happen due to fear, and I don’t find it hard to call that rape. The reason I don’t find this hard to believe is that I know people who this has happened to. You, Yams, are clearly not one of those people.

  38. The idea that a normal woman (i.e., one who is not suffering from a severe psychiatric disorder) would freeze in fear when a partner with no prior history of violence continues to make non-forcible sexual advances after she has twice expressed a reluctance to have sex strikes me as (1) incredibly degrading to both women and men, (2) so absurd as to make any further conversation useless.

  39. Cathy, did you read Mandolin’s story, the real-life example I linked to?

    I’m not persuaded by your multiple citations to how “normal” women act, because you give no basis for your theories, and because your conception of how people act seems too easy and one-dimensional.

    I think normal people have a lot of variance throughout their lives. Someone who is frozen with indecision and completely intimidated by an early sexual experience at the age of 14 (or 19!) might be completely confident and better able to express his needs at 30 — or, for that matter, a month later in a different situation. It doesn’t mean he had once been abnormal and later became normal; both are normal.

    A lot of people have screwed-up ideas about sex and sexuality at some point in their lives, and don’t always feel able to express their own wants forcefully or at all when the pressure is on. Maybe that’s a minority experience, but it seems to be going a bit far to say that it’s “not normal.”

    You wrote:

    Barry, with regard to your amended scenario: If the woman is not only silent but motionless and completely unresponsive throughout the encounter, then I would agree that the man has an obligation to stop and make sure she is all right.

    This makes it sound like we’re talking about people who are absolutely frozen, as if they were actually statues. I’d say instead that anyone whose sexual partner is being passive and not providing physical or verbal encouragement, has an obligation to make sure the partner is all right.

    Suppose that Angela provides no physical or verbal encouragement, and Aaron climbs on top of her and has sex with her anyway, even though she’s verbally declined twice. Would you still say Aaron has done nothing wrong, except that he “may” have been “inconsiderate”? Or would you say Aaron has done something blameworthy?

    With regard to the policy’s acknowledgment that consent can be non-verbal: I assume that in a case such as the Angela/Aaron scenario, the verbal expression of reluctance could only be overriden by explicit verbal consent.

    There’s no basis for that assumption in the policy’s language. It’s easy to imagine scenarios in which consent can be very clear and non-verbal.

    I simply don’t equate unwanted sex (for either women or men) with rape, and frankly, I think that to see it as some terrible devastating thing is a rather odd attitude reminiscent of very old-fashioned ideas about a woman being “ruined” by illicit sex.

    A total ad hom attack, without any basis in anything Chris or I has said anywhere in this debate.

    I don’t “equate unwanted sex with rape.” I do believe that sex without consent after multiple refusals is rape, or something close to rape. Your refusal to make the distinction between “unwanted sex” in general, and sex after multiple refusals, and with no apparent indication of consent, is very frustrating to me. The two things overlap but are not interchangeable, and it’s intellectually dishonest to refuse to acknowledge the distinction.

    Finally, of course, neither Chris nor I have said anything which reasonably imply that we think women are “ruined” by sex, and it’s unreasonable (to put it mildly) for you to imply otherwise. Sheesh!

  40. Chris

    Cathy, I’ll say it again:

    The reason I don’t find this hard to believe is that I know people who this has happened to.

    They are, at least in my estimation, “normal” people.

    That you find this kind of behavior “absurd” indicates, to me, that you have not done enough research on this topic.

  41. I’m inclined to think that some things are so obvious they don’t require research, just a basic familiarity with human behavior. However, I actually did read, years ago, studies of the experiences of women (and men) who gave in to unwanted sex in situations where no physical force was used, and I recall that fear of violence was not a commonly cited motive. Far more common was the fear of hurting the other person’s feelings, or of not being liked.

    Barry: I just read Mandolin’s story, and it seems to me that the problems in this story go far deeper than the fact that on this particular occasion her boyfriend had sex with her even though she repeatedly said no. The problem in the scenario is that most of the clearly consensual sex in the relationship is unwanted and unenjoyable to the young woman, and that she is eager to hold on to a relationship with a man who comes off as a creep. It sounds like this happened when she was quite young, and I have a lot of sympathy, but I don’t believe these kinds of situations should be dealt with by policies or penalties, and I’m not sure that policies and penalties could even help the young woman in this situation. The reason she doesn’t rebuff her boyfriend’s advances more firmly seems to be not that she’s physically afraid of him, it’s that she’s afraid of (1) “making a row” and drawing attention to herself, and (2) damaging the relationship. (It’s noteworthy that when other people show up and she is determined to end the sexual contact, she swats her boyfriend away and swims away from him.) A young woman who feels that way is not likely to take her case to a college disciplinary board. And she will not necessarily be grateful if she seeks counseling from a resident advisor to try to get out of a bad relationship and the RA files a complaint on her behalf.

    Incidentally, Mandolin’s situation is one that I could totally see happening with the roles reversed. So let’s turn the tables, shall we? Let’s say that our narrator is a shy teenage boy whose girlfriend is titillated by sex in public places. They’re in a swimming pool with some friends nearby. The girlfriend starts touching him under the water. He repeatedly asks her to stop but she reacts by treating his reluctance as a game and playfully persisting. He could easily push her away, yell at her, or get out of the pool and walk away, but he feels like he’ll be making a spectacle of himself (particularly since I think there’s a very common assumption that a man defending himself from a woman’s advances cuts a ridiculous figure), and besides, he doesn’t want his girlfriend to be mad at him when they go to bed that night. The girl manages to get pull his penis out of his swimming trunks, insert it in her vagina, and slide up and down on it a few times before they hear people coming and he finally pushes her off and swims away.

    Would anyone argue with a straight face that this young man’s experience is in any degree comparable to rape or sexual assault? Or that he should have some legal or administrative recourse against the young woman?

  42. Chris

    “Would anyone argue with a straight face that this young man’s experience is in any degree comparable to rape or sexual assault? Or that he should have some legal or administrative recourse against the young woman?”

    Yes. I would.

    No means no.

  43. Pingback: Alas, a blog » Blog Archive » Open Thread: Playing Catch With Children Edition

  44. Fruitbat44

    Cathy – Great to see you blogging again.

  45. Anonymouse

    I am not an eloquent or persuasive internet debater, but I find Cathy Young’s attitude horrifying. How hard is it to understand the concept of consent? The default state of any woman or man does not equal “yes.” The first blog post and early subsequent comments indicated that drunk/passed out woman=consent. Then there was some back-pedaling. Now the issue is passivity and silence. Nice way to move the goal posts.

    I’ll back up the person who said fear is an issue, even in a long term relationship. My ex-husband raped me. There was never any violence in our relationship prior to that night. I said “not now,” multiple times. He just didn’t care. My goddamned legs were crossed. That didn’t stop him. No, I didn’t scream or hit – I was in shock. I needed treatment at the gynecologist’s the next day. As a person, my default is not that I want sex at any and all times, under any and all circumstances. Oh, and no, I’m not severely mentally ill for being unable to process my then-husband’s actions that night.

    Lengthening the thread, with even more obscure hypotheticals does nothing to support the point. It just read as “Look! Look here, I can come up with a situation you can’t categorize. Nyah, nyah!”

  46. Chris

    I am sorry to hear about what happened to you, Anonymouse.

    But you are absolutely correct. I think what Cathy and others are missing here is that a partner who keeps pressing on, physically, after one has said “no” can be pretty scary in and of itself. Knowing that the person you are with has such little regard for your feelings and desires, how is one supposed to know whether or not they will become violent, even if they never have before?

  47. Anonymouse: I am sorry about your experience, which I really don’t believe I can debate since I have no knowledge of the particulars, including the degree of physical force that was used, or how menacing your ex-husband’s demeanor was.

    I certainly never said that sex with a passed-out woman was consensual. On the other hand, sex when one or both partners are intoxicated is extremely common. I believe it was Rita Rudner, a female (and feminist) comedian, who once said that it’s ironic that pregnant women are advised not to drink alcohol considering that if it weren’t for alcohol, most of them wouldn’t be pregnant in the first place.

    Persisting in sexual advances after one’s partner has expressed reluctance to have sex is an extremely common behavior, for both women and men, which is why I find it very hard to believe that it is frightening per se. Acting contrary to the wishes or desires or one’s partner is extremely common behavior in other areas of relationships as well. Some amount of it is normal (since the give-and-take of relationships involves sometimes accommodating one’s partner and doing something you don’t want to do). If it’s very common and one-sided, then there’s obviously a problem in the relationship.

    Let’s picture a non-sexual scenario. Angela and Aaron are at a party together. At some point Angela says she wants to go home. Aaron says he’s enjoying the party and it’s not fair for her to drag him away. Angela says that in that case she’ll go home by herself. When she moves to walk to the door, Aaron puts his arm around her waist and asks her not to go. Angela repeats once again that she’d like to go home but Aaron keeps his arm around her waist. Angela does not remove his arm either and makes no further move to leave until they leave together.

    Arguably Aaron’s behavior is insensitive, but would anyone seriously argue that it constitutes unlawful imprisonment or kidnapping, unless he is actually forcibly restraining her (i.e. holding her with enough force that she cannot free herself without using force)? Or that such an incident should be grounds for disciplinary action?

  48. Chris

    “I am sorry about your experience, which I really don’t believe I can debate since I have no knowledge of the particulars, including the degree of physical force that was used, or how menacing your ex-husband’s demeanor was.”

    Pardon my language, but these particulars are fucking irrelevant.

    What part of “no means no” do you not understand?

  49. Anonymouse

    You question the physical force, whilst I believe I already mentioned that I required medical attention. Enough said. Why did he need to be menacing? I don’t care what his “demeanor” was at the time. I did not consent. That’s all. That is rape.

    And as I reject your other thought experiments that change the scenario to little “gotchya” situations, I reject the wholly non-sexual one as being applicable to rape. This is not a philosophy class, and if it were, from previous my experience, you wouldn’t be impressing anyone. I did not give consent. That is rape. No one should have to say “no,” the word partners should be looking for is a form of “yes.”

  50. The part where people do routinely change their mind after saying no, in response to non-forcible, non-threatening advances. Either because they’ve genuinely changed their mind or because they decide to go along for their partner’s sake.

    Didn’t you previously acknowledge that if someone’s response to “no” is “let’s see if I can change your mind” and the other person does change their mind, it’s not rape?

    Is there any other area of life in which “no means no and it’s always final” is expected to apply? I’ve seen “How to never take no for an answer” as a tagline in an ad for seminars on professional success.

  51. Anonymouse: If physical force was used, I don’t think I or anyone else would question that this was rape, so I’m not sure what we’re even debating.

    And as I reject your other thought experiments that change the scenario to little “gotchya” situations, I reject the wholly non-sexual one as being applicable to rape. This is not a philosophy class, and if it were, from previous my experience, you wouldn’t be impressing anyone.

    Mocking my analogies as “gotchya” (sic) situations is, frankly, not impressing me, since you haven’t bothered to give any reason these analogies are not applicable.

  52. Chris

    “The part where people do routinely change their mind after saying no, in response to non-forcible, non-threatening advances. Either because they’ve genuinely changed their mind or because they decide to go along for their partner’s sake.”

    But that is clearly NOT the case in any of the examples we’ve brought up. Not Angela’s, not Mandolin’s, not Anonymouse’s, not either of the two rape victims I know of personally.

    Unless you think laying there while receiving unwanted sex amounts to “changing one’s mind,” then I am not sure what that has to do with anything we’ve been talking about.

    “Didn’t you previously acknowledge that if someone’s response to “no” is “let’s see if I can change your mind” and the other person does change their mind, it’s not rape?”

    Yes.

  53. Anonymouse’s experience evidently involved physical force, so it’s in a different category altogether.

    I’ve already commented on Mandolin’s story. It sounds like a very bad experience, and the relationship she was in sounds psychologically abusive; but it still reads to me like acquiescence in unwanted sex, not rape (since, when she was resolved to end the sexual contact, she ended it by swatting her boyfriend off and swimming away). I am definitely not denying that this was a traumatic experience. However, I’ve also explained why I don’t think a quasi-judicial approach in this situation would help.

    As for the hypothetical Angela, the fact is that the scenario in the policy tells us nothing about her reaction to Aaron’s persistent advances. Would it change your perception if there was some physical response on her part, such as putting her arms around Aaron when he got on top of her or opening her legs to allow penetration? (Responses that could indicate either genuine consent or nothing more than compliance.)

  54. Anonymouse

    I wasn’t going to come back to this site, but I can’t let the last post stand. It does not take “physical force” to cause actual physical harm to a woman who does not want sex. To spell it out, in my case, there were torn tissues that needed to be stitched. I did not force my attacker/husband off my body because I was in shock. Chris has referred to cases such as this above.

    I should never have to explain my rape to a rape apologist. I said “no,” quite plainly, multiple times. I did not say “yes.” That means what followed was rape. It’s actually quite simple. The default mode of a person is not consent, no matter how many consensual times the couple has had sex.

  55. Clarence

    Ironically, neither this post , nor the post on Alas, gets to the real big issue with Duke’s policy which I shall put in my next post. For now, into the fray!

    First, was the young lady in the first scenerio- the one that is being argued here, raped? I’ll admit its rather hard to tell, as she never gave explicit consent, but never gave an explicit “no” when the deed was actually being performed, and no information is given to us about her mental state, physical mannerisms, thoughts, etc.

    So given all that I’ll state my opinion is that she was not raped. This is partly because I don’t see what the young man involved did as worth major sanction, let alone prison time, whereas in most rape cases (victim passed out, physical threats or force) I have no doubt as to the appropriateness of punishment.

    Let me go farther and add two additional thoughts which I am too tired to fully draw out tonight:
    A. One idea which is occasionally flouted, and I tend to support, but which seems never to actually be acted on is to change the laws regarding non-physically coercive or exploitive sexual assualts. Specifically I am thinking that rather than placing something like this into the category of rape – A crime I tend to think has to involve some degree of threats or force and not mere misunderstandings or “victims” playing fearful mindgames with themselves that their partner can’t see- they be placed into an entirely different sexual assault category and punished but not as harshly as rape. I find it ridiculous to place this – a situation where we don’t even have enough information to infer the young ladies mental state at the time they two hypotheticals are making love – in the same category as a relative of mine who was physically assaulted and violently sexually violated.
    B. Yes, means Yes is not a bad philosophy -though I hardly trust most feminists to put the philosophy into practice in any kind of benign or fair way – but its not the legal or social world we currently live in, and punishing students as if it is is not only counterproductive, but also unjust.

  56. Clarence

    Well, I’m going to trust that this comment and my first and previous comment will make it thru moderation.

    Here’s two links to the real problem with Duke’s sexual assault policy. And then I’ll explain what it is.

    http://durhamwonderland.blogspot.com/2009/09/simply-extraordinary.html

    http://falserapesociety.blogspot.com/2009/09/incredible-duke-university-has-just.html

    The two things that are most problematic:

    1. “As reflected in [Women's Center Director Ada] Gregory’s comments, the policy is concerned with the possibility of sexual misconduct through coercion. A “fundamental principle” of the sexual misconduct policy is the following: “Real or perceived power differentials between individuals may create an unintentional atmosphere of coercion.” [emphases added] How, precisely, should a Duke student be held liable for “perceived” power differentials creating an “unintentional” atmosphere of coercion? Duke’s policy does not explain. ”

    2. Perhaps more importantly showing that these aren’t impartial panels after all the accuser is given rights the accused is not including “…

    Third, Duke guidelines state that sexual misconduct “complainants have the right to receive—within the parameters of FERPA—a copy of the written information given to a hearing panel.” The accused student, on the other hand, is promised no such right. This is particularly ominous given Duke’s new ability to hire an outside investigator to look into sexual misconduct allegations. Yet while the accused student has no right to receive any of the “written information” that the investigator produces (what in a criminal case would essentially be the discovery file), his accuser can get all of the documents, except for those covered by FERPA.

    How is giving a right to receive written material only to the accuser consistent with the “presumption of innocence” for the accused? Duke doesn’t say. ”

    I wonder if Amp and them will change their minds now that the abominable details of this mess of a policy have been made clear?

  57. Innocent Abroad

    Er, unwanted sex is rape. End of.

    And – at least in English law – a spouse’s refusal to have sex is “unreasonable conduct” and therefore grounds for divorce. Laws that address messy situations are apt to be messy themselves.

    I hope what you are trying to say, Cathy, is that Anonymouse’s rape can hardly have come out of the blue (in the sense that stranger rape does). But even if someone’s nom de blog indicates that they may have self-esteem issues, that does not mean they can’t be raped: it’s still rape when it re-inforces a previously held victim complex, and it’s still rape even if it provides a wake-up call for the person raped to address their own “stuff”.

  58. When the discussion has devolved to the level of people being called “rape apologists,” I refuse to participate further (particularly since I am in no position to comment on Anonymouse’s personal circumstances; for the record, I would say that when sexual intercourse causes a woman physical injury requiring medical intervention, her lack of consent should be evident whether or not she has said “no”).

    Innocent Abroad: What, exactly, do you mean by “unwanted sex”? Because if it simply means, literally, having sex when you do not want to have sex, I have been raped several times and have committed rape several times. Campus surveys have showed that half to two-thirds of both men and women have had unwanted sex.

    I define rape (or sexual assault) as a situation in which the victim is (a) physically forced into sex, such that s/he is either physically incapable of removing her- or himself from the situation, or would have to physically resist with force to avoid sex; (b) submits to unwanted sex due to direct or implied threats of physical violence, or as a result of a situation in which a reasonable person would see a danger of violence.

    Ironically, not long ago, in my life in fandom, I got embroiled in a debate on the other side of this issue after a young woman posted a fanfiction in which the heroine is violently forced into sex (she is depicted as being physically restrained, repeatedly trying to escape and fight back trying and being physically subdued, and repeatedly begging the man to stop). I, along with several other people, told the author that her story required a disclaimer for rape. Her response was that while the situation was “perhaps slightly non-consensual”, she refused to consider it rape because (1) the heroine was physically attracted to the man and had an orgasm at the end of the encounter, and (2) the force he used was not so extreme as to cause her physical injury. When I and others told her that her justifications were even more offensive than the story itself, she replied that she did not see what made her story worse than several other fanfics posted in the same community in which the heroine repeatedly says no but ultimately succumbs to the man’s persistent advances — even though the other stories did not involve any violence or force on the man’s part, and the heroine’s resistance was overcome by her own desire against her better judgment.

    I distinctly remember wanting to bang my head on the desk because of the author’s refusal to see the difference. It’s ironic to see anti-rape activists blurring the same lines.

  59. Innocent Abroad

    CY – I am not concerned to develop a definition of rape such that only a small minority of people (almost all male) are rapists. Few of us have not run a red light – a potentially murderous act – but that does not mitigate the offence: no legal system can accept the plea “but everyone does it” no matter how true that may be.

    I believe that there is a political sub-text to all sexual activity, including flirting; do not a lot of academics in English Departments make a living from the exploration of this belief in Shakespeare, Austen, Tolstoy etc etc? Let us therefore agree that in proposing a definition of “rape” one is inevitably engaging in politics.

    I suggested semi-seriously earlier that Duke was seeking to turn its students’ minds away from sex and towards their studies. I also suspect that it is anxious – may even have been advised by its law faculty – to do everything to protect itself against a lawsuit. (But perhaps that is just an Englishman projecting a stereotype of Americans as litigious.)

    My apologies for not turning off the bolding in my previous comment.

  60. Innocent Abroad: considering the extremely strong emotional charge that the word “rape” carries, I am certainly not interested in expanding its definition to the point where it becomes something that the majority of men and women have committed and/or endured at one time or another.

    As for your analogy: no one that I know of has proposed redefining minor traffic violations as “attempted murder” or “depraved indifference to human life.” Secondly, human sexual behavior is not as simple as running a red light. A red light is not, for instance, going to suddenly decide that it’s really green.

    Research by psychologist Charlene Muehlenhard, among others, has showed that both women and men often feign reluctance to have sex for all sorts of reasons. I can personally attest that I once had a man tell me “We really shouldn’t be doing this”, only to pull me back toward him when I started to move away. (In his case, he was trying to assuage his misgivings about getting involved with me when I had not yet “officially” broken up with my previous boyfriend.)

    I want to add something to the previous discussion. If someone is literally in a state of shock, then of course they can’t consent to sex.

    On the other hand, in one “acquaintance rape happens to [straight] men too” story I read somewhere, the “victim” said that he was pressured into sex a couple of times by his ex-girlfriend after she came over to his dorm room “just to talk.” Finally, the third or fourth time she started to “seduce” him and ignored his soft-spoken “I really don’t want to do this”, he lost his restraint and yelled something like “Just f***ing STOP — I told you I don’t want to do this!”, whereupon she called him a jerk and stormed off. Sorry, but I think that to call this “rape” or “sexual assault” is a complete moral travesty. If you’d rather give in to unwanted sex than raise your voice to the other person and tell them off in no uncertain terms, that is your problem.

  61. I want to add something to the previous discussion. If someone is literally in a state of shock, then of course they can’t consent to sex. [...]

    If you’d rather give in to unwanted sex than raise your voice to the other person and tell them off in no uncertain terms, that is your problem.

    Okay, so A has sex with B, while B is just lying there, not participating, after having verbally declined a couple of times.

    If I understand your argument, you’re now saying that if B is in shock, then it’s rape. But if B is just giving in to unwanted sex, then it’s B’s problem, and A has done nothing wrong (other than perhaps being inconsiderate).

    But — assuming that A is not a doctor — how is A supposed to be able to tell the difference between these two cases?

    And why is it so horrible to expect A to not proceed without an actual expression of interest from B (either verbal or physical)?

    (Also, I don’t think there’s any evidence that the majority of people have had sex with a partner who said they didn’t want to have sex, and then gave no indication at all of wanting sex. Nearly every example you’ve mentioned seems to be an example of someone at first saying “no” and then saying “yes,” either verbally or through physical indications. That’s not the same thing.)

    * * *

    Another consideration: Serial rapists look for vulnerable victims. If a serial rapist judges that a potential victim is someone who might freeze up rather than yelling, that’s the person the rapist will go for.

    Do we really want to say that if a serial rapist is successful at picking out victims who will freeze up, then it’s not rape? Is that really a situation our laws and rules should never be able to address?

    You seem to think that laws should reflect an idealized world in which every person is strong and acts logically and is always capable of being a loud advocate for their own best interests. I don’t think that’s the real world; and I think it’s unreasonable for any sexual misconduct code to say, in effect, “screw the weak. If they can’t defend themselves, then they deserve whatever predators do to them.”

  62. Innocent Abroad

    Cathy, that is a political position, just as the Greenham Common Women’s “all men are rapists” was.

    I happen to agree with you: I hope you will agree with me that in doing so we are placing a high value on sexual hedonism, to the extent where we see it as a right, part of the “pursuit of happiness” perhaps.

    What I’m confused about is whether we ascribe that value to sexual hedonism as a cultural happenstance (the way we were raised, the commodification of lust, or whatever) or whether there is a philosophical justification for it.

    The whole debate is surely cast into the mould of assuming that sexual intercourse is normally both consensual and pleasurable for both (or indeed all) parties. Some critics of the hegemonic culture – and not only Muslims or evangelical Christians, but also Freudians such as Zizek – would argue that it is this assumption, rather than the “date rape” category, which is the problem.

  63. Schala

    Men are often assumed to “always want it”, to a much higher degree than women, whom men feel they have to seduce (women don’t feel they have to ‘seduce men’ into sex, they should just ‘be there’ and be attractive and sex will occur).

    Just fine when said men also want it. Except many will be more than reluctant to say no (never learned to say no, thinks it calls in question his masculinity, AND his sexual orientation), and will eventually concede a reluctant yes.

    Those that do say no are often ignored (by their partner). And those that are raped ARE ignored by authorities. Because it’s a well-known “fact” that men want it all the time with anyone. If they don’t, they are clearly gay (code for feminine, which ironically enough makes those women mysogynists, because they consider feminity lesser).

    May they be raped violently or just refuse sex without fighting back, they are wusses and not worthy of an respect, even less of being defended by the justice system. And thus the perpetrators go free.

    Women can be excused for not resisting, what with the body size difference on average between men and women. But even the smallest skinniest man gets only a look at their penis, and not their size, before a judgment is made about his physical resistance.

    Sort of like I was expected to be able to lift 60 lbs boxes without any problem at all (in all jobs involving heavy lifting of any kind). Penis is power after all. It gives me muscles or something. The few women in those jobs were either masculine and did the same job (rarely), or were given lighter work (MUCH smaller boxes, like 2 lbs tops) for the same pay. The strength disparity should not justify expecting anyone with a penis (above a certain age) to be able to lift heavy boxes. But in practice, it does.

    I transitioned to female. Same muscle mass and all (near none). I can still lift 40-50 lbs of stuff without much trouble (groceries) and yet someone will offer help. Never happened before. I was just as weak. Nobody thinks I can lift furniture now, but before, I was expected to self-move.

    Stereotypes are a measure of societal differences (averages only). Applying them to individuals is a grave mistake. And it is done routinely. By schools, workplaces, governments. This should stop.

  64. Social Worker

    @ Ampersand: “But — assuming that A is not a doctor — how is A supposed to be able to tell the difference between these two cases?”
    “If a serial rapist judges that a potential victim is someone who might freeze up rather than yelling, that’s the person the rapist will go for.”

    Soooooo, are all rapists doctors or are all doctors rapists?
    Important for me to know as I have a medical appointment tomorrow.

  65. Sigh.

    Okay, I’ll play. What is your point, please? Spell it out for me.

  66. Social Worker

    Seriously? I thought it was clear.
    No point. Just a humorous comment.

  67. Nicolas

    We don’t remove agency from a person whose drunkenness causes a car accident, so why should we remove it from a person who is so drunk that he or she can’t consent to a sexual act? The decision to risk vehicular mayhem or unregulated sex follows from the decision to become extremely intoxicated.

  68. Innocent Abroad

    Nicolas, I don’t understand you.

    Are you saying that if a man would fail a breathalyzer he should not be thought capable of asking a woman if she consents to sex, either?

    Or that if a woman would fail a breathalyzer she should not be thought capable of consenting to sex?

  69. Actually I think Nicolas’s point is the opposite — that a person who has sex with someone in an intoxicated state with whom she would not have had sex when sober should not be able to say that they are not responsible.

    IMO, that depends on the degree of intoxication and consciousness. Driving involves an action whereas sex can be something “done to you” (if you are unconscious or barely conscious).

  70. Innocent Abroad

    Sorry, Cathy – I can’t work out who’s drunk and who ain’t in your post!

  71. I’m saying that someone who is drunk doesn’t get to say, “It’s not my responsibility, I was raped” (unless s/he was incapacitated or severely disoriented, rather than just impaired in judgment). Just as, of course, someone who actually does rape another person while drunk doesn’t get a pass because of intoxication.

  72. Innocent Abroad

    The difficulty with which is that it rather assumes that the difference between “severe disorientation” and “impairment of judgement” is clear either to the woman at the time or to cops and jurors afterwards.

    Practical experience, surely, suggests otherwise?

  73. Nicolas

    Both drunk drivers and people subject to unconsented sex have things happen to them they don’t anticipate, don’t understand, and don’t control — at the time those things are happening. The moment they choose to become drunk they accept, up to a point, the consequences of that choice. To be consistent, if we are to absolve the drunk whose condition renders him unable to consent to sex, we must also absolve the drunk whose condition renders him unable to control his car. But we shouldn’t do that, because there is still intentionality in both cases; both parties choosing to become so intoxicated that their volition is impaired.

    Is anyone willing to argue that a rapist should be held blameless if his rape occurs while he is severely intoxicated? Surely the rapist and the raped must be held to the same standard of personal responsibility.

  74. Nicolas

    I disagree with Cathy’s last point about incapacitation and disorientation. Again, we do not absolve a drunk driver because he is “incapacitated or severely disoriented,” and we shouldn’t absolve a person in such a state of extreme intoxication that he has no ability to recognize or control what is being done to him sexually. If anything, because both parties chose to become “incapacitated or severely disoriented,” they should each be held to a higher standard of responsibility.

    It’s important to follow the thread of logic. If a severely disoriented drunk person gives a sober person $100, is the recipient of the money guilty of a form of theft? How about if the “blind drunk” buys the sober one a Coke? How about if he signs over his car? Can the severely impaired drunk be held responsible for vehicular homicide, but not for sharing his wealth, or for being sexually used?

    Let’s say that a young woman becomes so intoxicated that she is “severely disoriented.” A sexual act is performed on her in this state. She is then able to stumble to her car, which she soon crashes into another, killing its passengers. Is she responsible for the accident, but not for the sex? Why?

  75. I think you’re mixing up active doing and “being done to.”

    Let’s try out two scenarios here.

    Tom, Jack and Harry are drinking together. Jack gets drunk to the point of being disoriented. As a prank, Tom and Harry decide to drag him outside, put him behind the wheel of his car, turn on the ignition, put the car in “drive” and set it rolling downhill. The car runs over and kills or mauls someone. Who’s legally responsible? I’m pretty sure it would be Tom and Harry, not Jack.

    Or: in the same scenario, Tom and Harry rob Jack of his wallet and watch when he is passed out or disoriented. Are they guilty of robbery? I’m pretty sure they are. Is Jack’s drunkenness a mitigating circumstance to their act? I don’t think so.

    Now, if they talk Jack into giving them the wallet and watch voluntarily, then I believe the responsibility is entirely his and he can’t say “my judgment was impaired, therefore I was robbed.”

    Which is why there’s a really thin line here (with sex) between intoxication and incapacitation.

  76. Nicolas

    I am positing that at some point the intoxicated person can’t make a lucid decision, and the difference between doing and being done to is nullified. The drunk driver, entirely out of his senses, is as effectively being done to, volitionally, as the sexual subject. The point of volition is when the intoxicant is consumed. The decision is then made to relinquish responsibility.

    There is, obviously, a grey area between total lack of cognition and impaired lucidity, but who, after the fact, can hope to determine where on the cognitive scale the intoxicated person rested? That’s why I argue that when a person is highly intoxicated he voluntarily relinquishes the self-control which is the foundation of volition. The blind drunk is either not responsible for anything or he is responsible for everything.

    I embrace the implication of what Ludwig von Mises wrote:

    “To punish criminal offenses committed in a state of emotional excitement or intoxication more mildly than other offenses is tantamount to encouraging such excesses. … Man is a being capable of subduing his instincts, emotions, and impulses … He is not a puppet of his appetites. … he chooses; in short, he acts.”

  77. Innocent Abroad

    A number of points arise from CY’s last post.

    First, in the case of the “car prank” I’m pretty sure that all three would be prosecuted in England. For one thing, the authorities would be able to lay hands on Jack more easily and for another they would want to send a message.

    So the two hypothetical cases are not on all fours.

    At a different level, there is the question of whether the issue of rape can even be discussed in this way, abstracted from what we take power relations between men and women to be as things are, and as opposed to what we would wish them to be. Is there not a school of thought which holds all such abstraction to be necessarily self-delusive at best, or conservative (in the sense of having the effect of upholding existing power relations) at worst?

    In this light, the issue of rape is but a specific case of the general question: does the empowerment of women imply the disempowerment of men?

    This in turn begs the question of what “empowerment” actually is. Is the mercenary or pirate who is unconstrained by national or international law and so “acts out” by raping women among other things more empowered than the law-abiding, responsible citizen?

    The question of what sort of rape law women (and men) ought to want – as a matter of ethics – will depend on whether or not we think that rights imply responsibilities. The answer to that might seem obvious, yet we need (if we think it is obvious) to be able to say that my responsibility towards group X (men, whites, plutocrats) is not diminished by my right to retribution for their past malfeaseances towards me. I am not sure what such a licence would look like: can public policy compel forgiveness?

  78. handworn

    Well, since we’re all being outrageous, let me ask this: if a woman has drunk herself unconscious, how is she to know afterwards that she didn’t consent? A lack of objection, by word or action, is pretty much generally considered to be consent. Is the guy, probably in a similar state (though how he could perform well enough at that point to do anything is beyond me) going to remember clearly what was said? Come to think of it, if a person in a vegetative state gets “raped” by an orderly, it’s all very well to call it rape for the lack of any other term, but how can we treat it the same as the same act in which the person being raped was conscious and terrified? Apart from things like pregnancy or STDs, which I think would be a crime of its own, is it not the knowledge of harm and helplessness, the mental damage, that we abhor? If you have ever gotten that drunk, or been put under for surgery or something, how do you know you haven’t been raped or sexually abused? How would you know in most cases that it was by a man?

    I think, far from me being intellectually dishonest, that some of you commenters are being hypocrites. Both conventional wisdom and personal experience say that women usually rely on men to initiate…well, anything, relationship-wise, at least in the early stages. How can you enjoy the benefits of and encourage initiative by someone else while claiming its abuse has nothing to do with you? And if, as you’re doing, you expect more of men than you’re doing of women, assuming a parallel degree of inebriation, how can that not be accompanied by more credit or respect for men than women in sexual matters, the same way respect follows responsibility which follows power? The way you talk, it sounds like a results-based “heads I win, tails you lose” situation for women and consent. No double standards in ANY direction, if you please, results be damned. If you want the respect, you take the responsibility.

    Finally, I think when you get to that level of habitual drunkenness, both the man and the woman have a more serious problem than anything to do with who slept with who under what conditions.

  79. Innocent Abroad

    Just a couple of comments on this: I think your last point is easily the strongest. Much of the rest deals with the fact that any given legal system is only going to map crudely onto any particular individual’s sense of right on wrong – at least when it comes to anything to do with sex.

    I would certainly say that an orderly having sex with a long-term patient in a PVS is a rapist: indeed I think that you would have to talk to a fair few people in coffee bars (as opposed to the Web) before you found anyone who thought otherwise.

    “Women usually rely on men to initiate…well, anything, relationship-wise, at least in the early stages” – oh come on, you expect us guys to swallow that? Coquettry doesn’t exist. You’ve never done it. None of your girlfriends ever did it. You’ve a deal of credibility repair to do now, lass…

  80. I’m assuming that “handworn” is a lad, not a lass. ;) My apologies for being AWOL in this discussion; I will comment on the latest posts ASAP.

  81. Chris

    handworn–”A lack of objection, by word or action, is pretty much generally considered to be consent.”

    I don’t know if that’s “generally” considered consent, but many of us have already pointed out that this idea is exactly the problem. A person lying down and not protesting while you take their wallet out of their pocket without permission is not “consenting” to give you money. You can be held liable for theft for this action.

    “Come to think of it, if a person in a vegetative state gets “raped” by an orderly, it’s all very well to call it rape for the lack of any other term, but how can we treat it the same as the same act in which the person being raped was conscious and terrified?”

    Are you fucking kidding me with this? Like Innocent Abroad said, good luck finding a great deal of people to agree with you on this.

    “Both conventional wisdom and personal experience say that women usually rely on men to initiate…well, anything, relationship-wise, at least in the early stages. How can you…”

    *sigh* Yes, this is entirely the fault of feminists. It isn’t like feminists have ever tried to change this power structure, or anything. We’re just a bunch of hypocrites because we still think that men should still open doors for women and always pay for dinner. Oh, wait! That’s a conservative position, not a feminist one!

  82. Chris

    And Cathy, I think your hypothetical scenarios are right on point.

  83. I’m here via a string of blog posts, so jumping in extremely late (here’s hoping that the comment form accepts html, ’cause that’s how I think).

    But I think that one of the things that folks are getting away from is real-life application. I know that I can get caught up in hypotheticals and hyperbole as much as the next person, but keeping arguments in these terms (which get/have got more outlandish as the thread has gone on) abstracts the questions to the point of actually having very little relation to the situations that are likely to happen.

    So I’ll give two examples, drawing from my past experiences.

    Example 1: A young man with whom I have a friendship attempts to initiate kissing. I try to move away. I do not say ‘no,’ but it seems clear to me, at least, that moving said young man’s hands off my hips would imply a lack of consent. He attempts again; I turn my head away. He attempts a third time, pushing me into a wall. (At that point, another friend passed by us and intervened.) I was seventeen; I don’t remember fourteen years later why I didn’t express myself verbally. My actions were not entirely ‘passive,’ but I did not explicitly request that he stop. The non-verbals either did not register with him or were willfully ignored. The experience registered as being actually more traumatic for me than an earlier experience of a forced (by physical overwhelm) blowjob because I felt that I wasn’t able to protect myself even though I wasn’t until the end being physically overwhelmed.

    Example 2: A few years later, I’m having a first meeting with someone I met on the internet. I’ve already broken “Rule Number One” of internet dating by going to his home, but we’d spoken on the phone several times, agreed that dating and sex were off the table, and wanted to be able to continue some of our more personal conversations privately; I did have a friend calling to check in at regular intervals. Over the course of the evening, the man keeps topping off my wine, so I’ve no idea how much I’m drinking. I know I’m tipsy, and know my inhibitions are down. When he asks if he can kiss me, I say yes, but only kissing. Alcohol keeps flowing. When he suggests we move into the bedroom, I am willing, even though there’s a bit of my brain trying to tell me this isn’t a smart idea. I only actually withdraw consent when he refuses to wear a condom for genital contact, and only try to withdraw from the situation when I realize that I am dizzy. Though I have said I need to stop and that I feel dizzy, he attempts to keep going until I forcibly push him away. This doesn’t traumatize me nearly as much, largely because I understand how I have participated in the situation, and consent had been sought. That I consented foolishly and drunkenly did not mean that I hadn’t consented, and in the light of the next day, I contacted the man involved and said that I did not want to see him again because I could not trust myself to maintain my boundaries with him.

    The reason I bring up these examples is not to show off how good I am at examining my behavior or anything like that. I actually think that given the second situation, which might qualify as ‘non-consensual’ under the guidelines, most persons would evaluate their actions and the consequences in a similar way. Young women are not stupid. We know that we are participants in our sex lives (and we already did in the mid and late 1990′s, and probably for as long as teenage women have existed), and enjoy being active participants.

    But if we had been living under the Duke or even Antioch rules at the time, would the second (or even the first) man have gotten in trouble? The answer is no. And why is that?

    Because there is no way I would report it, even in the first case, where I pretty much withheld consent throughout and needed to be ‘rescued’.

    For Pete’s sake, people. Do you really think people/alleged victims want to go through legal or campus judicial proceedings for things that are ‘borderline’? The actual consequence of such policies is that folks who honestly feel that their will and active participation in sex has been violated have some grounds to make that claim. Lots of women have unsatisfactory sex, compromise sex, etc. From the evidence/testimony in the comments, lots of men do, too. But even when we have engaged in or been subjected to sexual acts that we didn’t entirely want, we don’t go calling the cops or the campus police unless the behavior of the other party was particularly egregious.

    In Example Two, I addressed the issues of consent and boundaries individually with the other person involved, and consider it to have ended satisfactorily, though I don’t consider it to have been a shining moment in my sexual development. In Example One, I didn’t even know that issues of consent could be addressed, and have, ever since, worried that my lack of speaking up to anyone (friends, guidance counselor, whatever) meant that other women were subjected to similar treatment, and that perhaps the young man’s persistence eventually crossed the line to rape or other forms of sexual coercion/violence. Had there been an explicit policy at the high school in which the incident took place, I might have found a way to take it up, and perhaps there could have been an intervention, a correction of course in the other person’s ways of being with women.

    It was the next year that Antioch’s “egregious policy” was written, and let me tell you, I was so relieved to see that consent was being taken seriously by someone.

    And in the time since, I’ve found that “checking in” about consent makes sex better — “Does this feel good?” is a great thing to hear a lover say, and a great way to make sure that I’m doing a good job in my own pleasuring of another. Course corrections are possible, and they happen, and sex is all around more satisfying. Because who wants to be a shitty, incompetent, hurtful lover? Do the ‘men’ people are all afraid are not seeking consent actually want to suck at sex? If a man or woman doesn’t care about the pleasure and participation of their partner, then yeah, something very wrong is going on.

    I’ll also note that I’ve since stopped dating men — more because of my lack of interest in penis than because of any generalization of the jerkiness of the few to the many. I will say that, generally speaking, the model of “checking in” for consent/pleasure in the queer circles I’ve traveled in is pretty standard (as it is with safewords in BDSM circles), and that nobody’s ability to have satisfying sex has suffered from seeking the input of her/his/zir lover.

  84. A second comment…going off of the following comment by CY on May 12th:

    Is there any other area of life in which “no means no and it’s always final” is expected to apply? I’ve seen “How to never take no for an answer” as a tagline in an ad for seminars on professional success.

    And actually, that makes me feel kind of sick, too.

    The sexual arena seems to be the only one about which public discussions about boundaries and consent take place. Don’t we feel pissed off when we reject the ‘advances’ of a salesperson and they just keep on going, not respecting that we have a right to make a decision and have that decision be respected?

    And it’s this lack of consideration for boundaries and stated desire or lack thereof in other venues that results in people assuming that they have a right to keep pushing when someone has declined their sexual advances.

    So yes, I know that people are taught to keep pushing when they don’t get what they want. And I think that this is training people to be assaultive in the sexual arena.

    ***

    Another thing that I think is important to note is that usually when rules like this are put forward at the university level, it’s as much an attempt to prevent assaults and sexual misunderstandings as an attempt to figure out who to prosecute.

    I happen to believe that the goal of prevention is one worth pursuing.

    And I also know that the vast majority of those who experience ‘completed’ ‘unwanted sexual advances’ would call what happened to them ‘rape.’ Nor do any of the university-level policies. In fact, at the university level, we’re not even talking about criminality, but about the university imposing expectations on those who are privileged to attend it. And I really don’t think that’s out of place. It actually is up to a university, college, etc., to set the norms for its society. If you don’t like the prescribed norms, you can attend elsewhere. Especially if you’ve been accepted into Duke. It’s an elite school; you’ve got other options.

    It’s interesting that this discussion has made absolutely no distinction between criminal and academic penalties, or general and academic societies.

    Randomly groping someone in public (say, on the subway) is considered a criminal assault (though often a misdemeanor). Hell, exposure is considered criminal in most jurisdictions. The criminal justice systems in the United States, at least, have created shadings of violence.

    Similarly, universities and similar institutions usually make distinctions when it comes to sexual violence; groping a person at a party is likely to result, on most campuses, in ‘sensitivity education’ or counseling, with the worst probable penalty being suspension for the remainder of the term. Forcible rape (like murder) will usually require that the campus report the crime to the police. Date rape often falls somewhere between, but that’s where the investigative parts of the university’s judicial process come in.

    Now, I can certainly see the argument about the loss of the presumption of innocence in the way that Duke has worded its policy. But, again, it’s a private institution; it’s entirely possible that when someone is accused of anything there, there is no presumption of innocence. Again, if you don’t like the university’s policies, attend a different university. If attending this university is that important to you, you will conform to its rules and norms. You are usually contractually obligated to do so (I remember signing things agreeing to abide by college and seminary regulations back when I was in such institutions).

    To make an internet analogy: You always have the right to reject the TOS of a certain provider, but once you’ve done so, the provider has every right to prevent your use of its service.

  85. Mike Killingworth

    I think Songquake has made some excellent points, for which I thank her. Of course, some feminists would want to live in a world in which her second example did count as rape and I am slightly surprised that she doesn’t.

    The discussion about the fact that universities are private bodies and are thus entitled to set their own rules raised another point for me. The discussants – all, I suppose, American – seem to me to think the universities might set different rules and that these differences might be part of their offer to prospective students, like their libraries or sports facilities. This I take to be part of the American belief that more choice is always better.

    A counter-argument (does it appeal to me because I’m English?) might be that selecting a University is hard enough anyway, and that there is something to be said for them getting together and agreeing a common method of dealing with allegations of sexual harrassment?

  86. Chris

    “Of course, some feminists would want to live in a world in which her second example did count as rape and I am slightly surprised that she doesn’t.”

    I can’t think of a single feminist who would call an act in which no sex occurred “rape.” Can you?

  87. Mike Killingworth

    Chris, I read it that intercourse did take place – reading it again I admit that it’s ambiguous.

    Which seems to fit perfectly with the whole of this discussion.

  88. @Mike Killingworth – It’s less that I think that colleges and universities ought to have various standards with regards to defining sexual harassment and sexual violence than an acknowledgment that they do have different standards and that individual colleges and universities here in the US operate within a market economy. There are certain standards they need to meet to maintain accreditation, but there is also more than one accrediting body. And accrediting bodies would be the only ones that have both the reach and the clout to impose/arrange for uniform standards.

    The campus atmosphere (politics, community guidelines, etc.) does actually play a role in the selection of a school by many students. I’d love it if they all had guidelines and presentations about how to elicit and confirm consent, but this is not the case. So in 1996, I enrolled in a small college which had a pretty thorough community code that encouraged us to base all interactions on mutual respect.

    @Chris: Actually, I can’t think of a single feminist who would call an act in which rape occurs “sex.” It’s an exercise of power-over in which the volition and bodily integrity of the victim are disregarded entirely. And that (to grab onto an earlier trope in the very long thread) is why the fear is there — if someone is not respecting one’s bodily integrity with regards to volitional sexuality, what is to make one think they will respect one’s bodily integrity with regards to injury or death?

    That said, I don’t think that I wouldn’t qualify Experience #2 as absent of violation. I certainly wouldn’t call it rape, though, even by the broadest definitions, since consent was sought and generally given. I’m not going to say that being tipsy rendered me incapable of making decisions and communicating them; I will say that it lowered my inhibitions to the point where I made poor choices. Still, I was never really deprived of choice, and therefore consider the scene problematic but not assaultive. Example #1 was one in which I was deprived of choice, and the one I consider both assaultive and traumatizing.

  89. Songquake: Thank you for the thoughtful comments. I will try to reply ASAP (right now, dealing with a work overload + nasty summer cold).

  90. Hmm. I’d say the first comment validates the inflexibility of Duke’s policy. If even a handful of people like handworn are that intent on validating assault on the incapacitated (sexual or otherwise) then you’re going to have to draw the line in an otherwise annoying fashion.

    As I said in a post along these lines earlier this year

    “If you’re convinced it’s simultaneously intolerable and inconceivable for women to have sexual desire then of course you’re going to believe they’re going to claim rape every time they have a drunken hookup.

    In fact most people who have drunken hookups just say ‘oh well, that was dumb.’ You know who tends to claim rape instead? People who were actually raped.”

    @CY said “I’ve seen ‘How to never take no for an answer’ as a tagline in an ad for seminars on professional success.”

    Excellent analogy! Because people who’ve gotten high-pressured into a purchase they don’t like always remember their salesperson fondly and always look forward to going back the same store so they can get glad-handed and high-pressured into something else they don’t want. That’s why everybody just loves shopping in commission-only box stores and used car lots, why they so thoroughly trust commission-based stockbrokers, and why everyone agrees there’s no sexier, more guaranteed-successful after-work pickup line than “you know you can trust me, I work as a telephone solicitor!” Oops, no, wait, instead we’ve got an annoying buildup of objectively anti-social rules, scripts, and even regulations and laws to protect ourselves from just those sorts of non-sexual behaviors. I believe college campuses often have policies prohibiting hard-sell solicitation activity on their premises too.

    If I’m not mistaken there’s even considerable case law that essentially gives people the right to back out of contracts and other financial obligations they enter while demonstrably and knowingly intoxicated. (That whole “being of sound mind and body” business.)

    No reason, then, not to have similar, no-doubt equally annoying rules, regulations, laws, and social scripts protecting people from hard-sell sexual rather than commercial solicitations.

    Finally, hasn’t anyone else ever been a university-town bartender from back when the legal drinking age was 18? Some of the assertions people are making about what people, especially relatively inexperienced ones, can or can’t be expected to do judgment-wise are pretty… optimistic.

    That goes, incidentally, not only for victims but perpetrators. It’s the ugly but largely-unspoken truth about most “gray-areas,” most “date rapes,” and even the canonical but relatively speaking rare violent-stranger-jumping-out-of-the-bushes rapes. Why anyone thinks it’s ok to hold victims responsible for their alcohol consumption but give free passes to drunken assailants who are too drunk to register “no” and that their nominal date actually isn’t having a good time is beyond me. But I guess some people just see it that way.

    Final clue about that last point: just as people think “I’m not that kind of girl” in the morning, a hell of a lot of perpetrators imagine they’re not that kind of guy.

    figleaf

  91. Chris

    @Songquake:

    “@Chris: Actually, I can’t think of a single feminist who would call an act in which rape occurs “sex.””

    Sorry, Songquake, perhaps you’re right. I should have phrased that more carefully. My point was simply that since it didn’t seem like the man in Example 2 was able to “complete” the “unwanted sexual advances,” then pretty much no feminist would call what happened to you “rape.” At most, some might call it an “attempted rape,” although I wouldn’t agree and you don’t seem to either.

    @figleaf:

    “Final clue about that last point: just as people think “I’m not that kind of girl” in the morning, a hell of a lot of perpetrators imagine they’re not that kind of guy.”

    This is SUCH an important point. Not all rapists are obvious monsters. There are some who simply have internalized fucked up messages about consent, and those people could be responsive to policies such as Duke’s.

  92. Largo

    “@Chris: Actually, I can’t think of a single feminist who would call an act in which rape occurs “sex.””

    This would (or could) lead to strange locutions. Not least, that “it is possible to become pregnant without having sex”. Well, we have IVF today. But it would still be a very odd locution.

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