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.
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.