F.I.R.E., a civil liberties group with a focus on colleges and universities, objects to Duke University’s sexual misconduct policy.
When I sat down to write this post, my intention was to critique F.I.R.E. and defend Duke’s policy. Alas, closely reading Duke’s policy convinced me that although F.I.R.E. — although horribly wrong about some things (I’ll write a follow-up post criticizing F.I.R.E. tomorrow)1 — has a point regarding how Duke’s new policy deals with intoxication.
First, let’s quote the Duke policy’s definition of “consent,” which F.I.R.E. takes issue with.
Consent defined. The university’s definition of sexual misconduct mandates that each participant obtains and gives consent in each instance of sexual activity. Consent is an affirmative decision to engage in mutually acceptable sexual activity given by clear actions or words. It is an informed decision made freely and actively by all parties. Relying solely upon non-verbal communication can lead to miscommunication. It is important not to make assumptions; if confusion or ambiguity on the issue of consent arises anytime during the sexual interaction, it is essential that each participant stops and clarifies, verbally, willingness to continue. Students should understand that consent may not be inferred from silence, passivity, or lack of active resistance alone. Furthermore, a current or previous dating or sexual relationship is not sufficient to constitute consent, and consent to one form of sexual activity does not imply consent to other forms of sexual activity. Being intoxicated does not diminish one’s responsibility to obtain consent.
So far so extremely good, in my opinion. It’s essential that our culture push back against the “if they don’t resist, then it’s legit” standard of consent that’s been all-too-typical, and Duke’s new policy does exactly that. I’m very excited that Duke has taken this step, and they deserve a lot of praise for it.
But I think Duke stumbles here:
Conduct will be considered “without consent” if no clear consent, verbal or nonverbal, is given. It should be noted that in some situations an individual’s ability to freely consent is taken away by another person or circumstance. Examples include, but are not limited to, when an individual is intoxicated, “high,” scared, physically or psychologically pressured or forced, passed out, intimidated, coerced, mentally or physically impaired, beaten, threatened, isolated, or confined.
As usual, the biggest sticking point is intoxication. It’s certainly true that sometimes intoxication removes “an individual’s ability to freely consent,” but the above paragraph could be read as saying that in all cases, any level of intoxication removes the ability to freely consent. The policy should be rewritten to clarify that this is not the case.
Later in the policy, Duke gives an example of how they intend this policy to work:
Andrew and Felix have been flirting with each other all night at a party. Around 12:30 a.m., Felix excuses himself to find a bathroom. Andrew notices Felix slurring his speech. Andrew wonders if Felix went to the bathroom to vomit. When Felix returns, the two begin flirting more heavily and move to a couch. As the conversation continues, the two become more relaxed and more physically affectionate. Andrew soon suggests they go back to his room, and Felix agrees. As they walk down the stairs, Andrew notices that Felix looks unstable and offers his arm for support and balance. When they get back to his room, Andrew leads Felix to the bed and they begin to become intimate. Felix becomes increasingly passive and appears disoriented. Andrew soon begins to have sexual intercourse with him. The next morning, Felix thinks they had sex but cannot piece together the events leading up to it.
This is a violation of the Sexual Misconduct Policy. Felix was clearly under the influence of alcohol and thus unable to freely consent to engage in sexual activity with Andrew. Although Andrew may not have known how much alcohol Felix had consumed, he saw indicators from which a reasonable person would conclude that Felix was intoxicated, and therefore unable to give consent. Andrew in no way obtained consent from Felix.
I certainly agree that Felix was raped. To me, the key sentence is “Felix becomes increasingly passive and appears disoriented.” Once Felix becomes “passive” and “disoriented” — which I take to mean that Felix has ceased affirmatively participating in the sex or understanding what’s going on — continuing sex with Felix becomes rape. And taken as a whole, I suspect that’s what the Duke policy-writers were getting at.
But the way Duke’s example is written is too ambiguous. In particular, they seem to say that being “clearly under the influence of alcohol” — no qualifiers at all — is enough to make Felix “unable to freely consent.” But someone can be “clearly under the influence of alcohol” — for example, someone could be buzzed — but still be able to affirmatively, enthusiastically and meaningfully consent to sex.
Furthermore, Duke relies too much on the word “intoxicated” without defining it. My guess is that by “intoxicated,” they mean something like “substantially incapable, due to the use of drugs or alcohol, of either appraising the nature of his or her conduct, or resisting the act of vaginal intercourse or a sexual act.” But I shouldn’t have to guess that’s what they mean; they should have defined it.
On the whole, I think that Duke’s policy simply pays too much attention to the issue of intoxication. Intoxication shouldn’t be the issue: consent should be.
The best part of Duke’s new policy, in my view, is this: “Consent is an affirmative decision to engage in mutually acceptable sexual activity given by clear actions or words… consent may not be inferred from silence, passivity, or lack of active resistance alone.” That should be the standard, regardless of if the people involved are intoxicated or not.
Sexual activity with someone who understands what is going on, and who is clearly, actively participating in the activity, isn’t rape. This is true whether or not the person has been drinking.
Sexual activity with someone who isn’t actively participating — whose participation is primarily a “lack of active resistance” — might be rape.2 No one should have sex with someone if they aren’t clearly and unambiguously choosing to participate. Again, this is true regardless of if the person has been drinking.
But when Duke writes that “an individual’s ability to freely consent is taken away… when an individual is intoxicated,” they’ve taken a step away from that core principle. That was, in my opinion, a mistake.
For more on Duke’s new policy, I’d recommend Amanda Hess and Marcella Chester (who I suspect would disagree with this post).
- UPDATE: You can read the follow-up post here. [↩]
- I say “might” to eliminate certain exceptional circumstances, such as a consensual role-playing activity in which one person is pretending to be a corpse. [↩]
Ampersand,
I wrote about this issue at my org’s blog last week (SAFER, we support students who are trying to change their school’s sexual assault policy) and although my focus was on the language about “perceived power differentials,” the issue of “intoxication” did come up in the comments and I think that you’re right to bring it up. While I want to support schools who make positive steps to reform policy, like Duke, the lack of clarity around intoxication is a problem: because it give folks fodder for absurd protest, but also because it’s important to have real discussions with students about what affirmative consent is and how alcohol may or may not impact that. I think the best language in campus policy about alcohol focuses on incapacitation, using good sense to to decide when someone’s intoxication has crossed that line, and erring on the side of caution.
I have been following this on FIRE, and look forward to your followup post.
I hope you won’t neglect the interplay between the rules and the process, because much of the issues raised by FIRE result from the mixture of the two. Merely analyzing the rules won’t include the context, and therefore won’t really address the issues.
And I hope you won’t push aside any civil liberties issues without addressing them. There is often a conflict between the two liberal goals of “bettering society” and “increasing civil liberties,” and–as with the interplay of rules and process–it’s important to look at as well.
SM, I think my post is likely to disappoint — I’m not aiming for a comprehensive overview of the issue. (Time limitations, etc..)
Sarah, thanks for the pointer to your post — that’s a good post! I’ve added your blog to my reading list.
I think you’ve misinterpreted what this is about. I don’t think they’re actually worried about consent, really. They kick this off with: ‘Conduct will be considered “without consent” if…’. They’re not trying to give some philosophical exposition or definition of consent. They’re not saying everything which violates their rules is without consent. What they’re trying to get across is: ‘I don’t want you doing X’. And consent is just the descriptor they’ve used to label what X is. They’re explicitly not using the term in any, philosophical, legal or natural language sense. It’s just a placeholder.
They’re basically just saying it’s a policy violation if you have sex with someone who’s buzzed. Now you can disagree with that, in which case go for it. But they’re not trying to engage in the sort of broader philosophical debate about the nature of consent you’re interested it, and I think you’re shooting at the wrong target by assuming they are.
What’s the point of a policy that will never be followed? Telling people that can’t have sex if they’re buzzed is silly. People (especially in college) are going to drink, get buzzed or drunk and have sex. Most of them are going to want to.
Not to say raping a drunk person is okay, it’s not.
Rules and process tend to be multiplicative, not additive, in effect. So they need to be designed in conjunction, and they need to “fit” well.
Duke’s rules are among the strictest that I’ve seen since Antioch–which I remember well. That isn’t a problem in and of itself; you can have rules which are strict so long as you design processes that take the strictness into account.
But Duke hasn’t done an especially good job fitting the rules to the process. And like I said, you have to view the rules in combination with the process (and the punishment, but I don’t think that’s changed.) So the end result of (new rules) * (new process) makes my civil liberties antennae wiggle.
And obviously, that’s because I value civil liberties, and I place them very high in my “rank” list. Not all people care about liberties in the abstract, and even many people who purportedly value liberties are all too happy to bypass them for their favorite cause.
@joe
Simple – a policy that is overly conservative and ambiguous but sounds good gives the university plenty of wiggle-room when the shiat hits the fan. If somebody embarrasses the university but it isn’t legally rape… well, the university is in a position to discipline them, particularly if political pressure appears.
I don’t know how I feel about the footnote; it seems to me consensual role-playing is a tacit* exception to any policy like this.
But to address the main post, I would think this was written to be more restrictive than it was actually intended to be with the assumption of what is technically underreporting. If the “victim” had one drink and no complaints about the evening, it’s not an issue. That’s better than rape going unpunished because s/he wasn’t drunk enough to be considered unable to consent, even if she felt unable to consent.
*Hi Frank!
If everyone involved in a sexual encounter wants it to happen, then it’s consensual. Otherwise, not.
Trying to delineate specific rules for intoxication, social power, etc. is simply technocracy for the heart. There will always be something wrong with the specific ruleset. Stick to principles, and you can say something meaningful.
Of course, that doesn’t let the Life Nazis at Duke have their control fantasy.
Note that in the example given – and in other such examples I’ve seen elsewhere in these discussions – only one of the participants is drunk. What if they’ve both been drinking? I propose that would be the usual situation, especially at a college party where alcohol is present. Did they rape each other? I realize that sounds absurd, but that’s part of my point. Or is it whoever first registers a complaint? It’s not as if there aren’t drunk encounters that both participants find complaint with when they sober up.
And, once again, how do you enforce this? There’s still only two people in the room when the act occurs, and no disinterested witnesses that could claim “he consciously participated” or “he was out of it and was raped”.
The people who put this together seem to want to put themselves above the law, in that they want to be able to define and control behavior on campus in what should in fact be a criminal matter. Being condemned by some body on campus as a rapist is a pretty serious situation. When you under color of authority label someone a rapist the distinction of “rapist as we define it” vs “rapist as the law defines it” is going to get lost. So I have a few questions:
1) Who are the people who will evaluate whether a given situation was a violation of this (or any other such) policy?
2) Where do they derive their authority?
3) How are they chosen and on what basis?
4) What are the procedures by which they make their decision as to whether a policy has been violated?
5) How are they accountable for their decisions?
6) What are the rights of the accused? Do they have a right to counsel? Do they have a right to face and question their accuser? Do they have the right to compel the appearance of witnesses and to question them?
7) What records are kept of the charges, testimony, evidence and decisions? Who can see them?
8) What penalties can be assessed?
9) What are the procedures for appealing the decision?
For the record, I have no problem with defining an act where one participant is too intoxicated to give consent as rape.
You can enforce it just like any other situation where there’s no third party witness, which–for what it’s worth–are extremely common. You can use testimony, cross examination, and the like. “X said / Y said” situations arise in everything from assault (who started it?) to fraud (who did what?) to contract (what oral promises were made?) to tort (was this a loan or a gift; what did people say/do?) and so on.
As a random example, I would say that about 50% of my litigation involves cases where the outcome depends on the credibility and testimony of two competing parties.
Obviously it won’t be perfect. People can lie, and good liars can win. But if you use the right process, you can get some semblance of accuracy. Of course, this goes back to my “process” comment.
I think the point is that this lets them shirk the whole “he-said she-said” dichotomy. The policy talks more about intoxication than consent.
Imagine a scenario:
2 students get catastrophically plastered. The young lady claims she was raped, the young man claims it was consensual, and close examination reveals that both of them have a pretty fuzzy recollection of the events of that night. Obviously, a court of law is unable to get a conviction.
Now, depending on how the political winds blow, the university has a policy which is vague enough that it lets them bow to political pressure. If the student body cries out for the removal of the rapist, then they can claim that the intoxication policy demands they discipline him, regardless of whether or not he truly “raped” the young woman. Alternately, they can point to the vagueness of the regulation as an excuse to ignore the situation, should the reverse pressure exist.
RonF
Want a cookie?I can’t imagine that’s the minority position here. The problem is defining an act where one partner has had any alcohol at alll as rape, or where one partner is disinhibited but not incapacitated (which is where I can see a potential for ambiguity).But again, if no one “feels raped,” no one goes to the authorities. I suspect a bigger problem than perfectly consensual acts being treated as rape is people who were unquestionably raped, even by a narrower legal definition, having absorbed cultural messages telling them they aren’t entitled to “feel raped.” “Well, I don’t know, I don’t even remember what happened, I may have consented.” That’s clearly a violation of the policy, like SiF’s example, even if you couldn’t get a conviction in court.
Well, as usual:
There’s moral and legal rape, right? And they’re not the same thing; legal is much more limited.
There’s no really decent argument at all for limiting the scope of moral rape, and there are excellent arguments for adopting a policy like Duke’s, which is designed to make both parties examine more closely the scenario surrounding their contact. This raises no process or liberties issues whatsoever. There might be some point at which overly strict codes don’t work, but I don’t know what that is.
Legal rape is different. You can set the laws anywhere from “a perfect match for morality” to “no laws at all,” and there’s a big gray area in the middle. Unlike morality, you have tradeoffs in laws. If you benefit X, you often harm Y. Making matters much more complex is that the issue of whether that harm is good (punishment of the guilty) or horrible (punishment of the innocent) can’t be determined in advance.
So you have to look at both sides of the coin, and many one sided people fail to do so. MRA types focus only on the plight of innocents accused of rape, and pretty much ignore the issues surrounding rape victims or the social problems caused by failed convictions of rapists. They call their opponents man-haters. WRA types focus only on the issues surrounding rape victims or the social problems caused by failed convictions of rapists, and pretty much ignore the plight of innocents accused of rape. They call their opponents rape apologists.
Both of them are wrong.
Is anyone else relieved that they used m/m examples and didn’t treat it like it was any different than a m/f example? When I read the names at first, I thought, “Oh no, here comes the “gay guy takes advantage of the straight drunk guy”. At least, I read it as different than that. YMMV, I’m sure.
Which is quite alarming. Because if one person involved says “He consented” and the other person says “I can’t remember if I consented or not” then you have no one who says “I didn’t consent”. The fact that person A may have gotten so blotto that they can now no longer remember what happened doesn’t mean that they didn’t consent and enthusiastically participate at the time. It’s fairly well documented that if you drink a lot the effects of the alcohol intake can continue to increase after you stop drinking. There’s plenty of space there for the sequence of drink, get un-inhibited, have sex with a similarly drunk and un-inhibited person, get drunker and forget what happened. Also, it’s not like people stop drinking after they have sex at a party.
I see no way that either the statements in your original premise or SiF’s example clearly lead to a presumption of rape.
Feelings do not always match reality, either at the time or upon reflection. The fact that someone “feels raped” (to use your quotes) doesn’t mean that they were, and should not create the presumption that they were. “Feels raped” is a legitimate basis for an investigation but not for a conviction, whether in a court of law or in front of a lesser authority.
I happen to disagree that it doesn’t justify a presumption of rape, but even if it doesn’t, as Sailorman said, we’re not talking about legal consequences here. A Duke student — all things considered, especially a Duke student — should be above suspicion. If you don’t remember it the next morning you probably weren’t thinking about it clearly at the time, and couldn’t give enthusiastic consent. That’s probably within the standard for moral rape, even if it’s not within the standard for legal rape.
A Duke student — all things considered, especially a Duke student — should be above suspicion.
Why? Does being the subject of false rape accusations generate the presumption that further accusations are true? Seems to me that the rush to false judgement that Duke’s faculty and administration subjected their students to puts the onus of caution on the former, not the latter.
Pingback: Alas, a blog » Blog Archive » Cathy Young on Duke’s Sexual Misconduct Policy