Monday, September 16, 2013

Yale's sex policy illustrates the problem

Yale University has released a document this week including short sketches in which fictional characters navigate sexual encounters. These sketches are intended to illustrate when consent is present and when it is not.

The Yale document illustrates something the college didn't intend to illustrate: the disarray in our campus sexual assault policies.

One of Yale's examples illustrates sex procured after verbal pressuring. Some readers may be surprised to learn that colleges across America punish students for sex procured after “unreasonable” verbal or emotional pressuring. NCHERM, the organization that advises colleges across America on their sexual misconduct policies, says that sex obtained after such pressuring is sex without consent, and -- believe it or not -- numerous colleges have adopted the NCHERM model. We have raised concerns that NCHERM's policy is legally infirm and impossible to fairly enforce.

Yale's take on sex obtained by verbal pressure illustrates the problem. Read the Yale example below, and compare it with NCHERM's example below. We don't think Yale and NCHERM can both be right. What does it say about the state of college sex policies when Yale can come to a conclusion that is difficult to reconcile with NCHERM's?

Here is Yale's take on it:
Alexis and Riley are studying together in Riley’s room. During a break in their studying, they rub each other’s shoulders. Alexis then introduces some intimate touching. Riley moves closer and says “Okay, but I don’t want to go too far – we still have a lot of work to do.” Alexis continues to touch Riley in an intimate way. Riley willingly agrees to some contact, but mostly sets boundaries. Alexis jokes that they deserve to have sex as a reward for their hard work studying; Riley laughs. After their studying is done, Alexis suggests again that they should have sex. Riley responds they should probably get some sleep but continues to touch Alexis. After a few more minutes, Alexis asks once more. Riley pauses, then says okay and pulls Alexis closer. They have sex.

This is consensual sex. Despite initial hesitation, the ultimate agreement to have sex was voluntary and unambiguous. There is no violation of the sexual misconduct policy. The UWC would likely counsel Alexis about the inappropriateness of sexual pressure, and recommend SHARE’s sensitivity training program.
In words or deeds, Alexis tries five times to get a reluctant Riley to increase the intimacy of their sexual contact. Even when Riley finally caves in, his acceptance comes only after a pause, and only after he had repeatedly refused her previous entreaties.

Now, compare Yale's take on sex obtained by verbal pressure with NCHERM's:
Amanda and Bill meet at a party. They spend the evening dancing and getting to know each other. Bill convinces Amanda to come up to his room. From 11:00pm until 3:00am, Bill uses every line he can think of to convince Amanda to have sex with him, but she adamantly refuses. He keeps at her, and begins to question her religious convictions, and accuses her of being “a prude.” Finally, it seems to Bill that her resolve is weakening, and he convinces her to give him a “hand job” (hand to genital contact). Amanda would never had done it but for Bill’s incessant advances. He feels that he successfully seduced her, and that she wanted to do it all along, but was playing shy and hard to get. Why else would she have come up to his room alone after the party? If she really didn’t want it, she could have left. Bill is responsible for violating the university Non‐Consensual Sexual Contact policy. It is likely that a university hearing board would find that the degree and duration of the pressure Bill applied to Amanda are unreasonable. Bill coerced Amanda into performing unwanted sexual touching upon him. Where sexual activity is coerced, it is forced. Consent is not effective when forced. Sex without effective consent is sexual misconduct.
(Emphasis in original.)

NCHERM gets it wrong. Even NCHERM admits that Bill “convinced” Amanda to give him a hand-job — he asked, and she agreed. That's consent. To realize the absurdity of NCHERM's conclusion, remember that she willingly stayed in his room for FOUR HOURS, listening to his boorish and pathetic entreaties. No one held her against her will. Amanda had a reasonable alternative to engaging in the sex act but chose not to exercise it: at any time she was free to say “good night” and to get up and leave, but she didn’t do it. Yet, in NCHERM's example, Bill is responsible for Amanda’s choice.

Giving a horny college guy a hand-job because he wants it, or to shut him up, or because the woman wants to foster a relationship with him and sees that as a way to do it, is not sexual misconduct in any setting other than the academy.

Now try and reconcile Yale's example and NCHERM's. How are they different, aside from the fact that the aggressor in NCHERM's example is male and a lot more boorish about his desire for sex than the female aggressor in Yale's example?

In BOTH the Yale and the NCHERM examples, the reluctant party could have ended the pressure at any time by terminating the encounter. In NCHERM's example, Amanda could have got up and left Bill's room; in Yale's example, Riley could have asked Alexis to leave his room. End of story.  Read the legal analysis for why NCHERM's policy is unjust here.

We wonder if NCHERM would approve of Yale's example, drawing some fine-line distinctions about how how the guy in NCHERM's example crossed some line that the woman in Yale's example didn't -- emphasizing the "degree and duration of the pressure," etc.  If so, then we've really got a problem. Who is to decide when the line is crossed? What, exactly, does “unreasonable pressure” mean in a culture where sex roles of pursuer and “hard to get” have been fairly divided along gender lines for eons?  Apparently, the guy can ask for sex, but he can’t ask too much or too boorishly, and he might be expelled if he crosses some indistinct, blurry line that’s about as clear as a dense New England fog. Does a “no” at 7:00 o’clock mean the topic of sex is off-limits? For how long? Until 7:30? 10:00 o’clock? Midnight? The entire night? When does asking become nagging? Does the policy prohibit any nagging for sex whatsoever? Is a little nagging acceptable? At what point does a little nagging become excessive nagging? When will one more nag cross the line and be enough to expel a young man? When does “seduction” magically turn into “coercion”? There is no mistaking midnight for noon, but at what point does twilight become night?

To say that the contours are fuzzy is an understatement -- and that's the problem. No one — no one — can be sure at what point the line is crossed. As a law and as a policy, it is unworkable. Yale's example, coupled with NCHERM's, only proves it.

While Yale concedes that in its example, there was consent, it also says that sexual pressure is inappropriate and that Alexis must get sensitivity training.

I am lost. If there was consent, why were her actions inappropriate? And what offense is Alexis guilty of that warrants sensitivity training?

Colleges ought to get out of the business of enacting criminal codes and pretending to know how to police serious crimes. Here's a novel thought: colleges ought to go back to doing what they're supposed to do. It's been so long, it's difficult to remember what that was.