Alas, a Blog

Yesterday, I critiqued Duke’s excellent but flawed sexual misconduct policy.

But I also have problems with F.I.R.E.’s critique of the Duke policy. For instance, F.I.R.E. cites the North Carolina Court of Appeals (State v. Haddock), to suggest that North Carolina’s definition of “consent,” in cases involving intoxication, is superior to Duke’s.

So what does the North Carolina law say? ((Like F.I.R.E. I’m basing this on the Court’s discussion of the law in State v. Haddock.)) In a nutshell: If X drinks him or her self into “unconsciousness or physical helplessness,” then having sex with X while X is knocked out is rape. However, if X voluntarily drank into a state where X is conscious, but X is “substantially incapable of either appraising the nature of his or her conduct, or resisting the act of vaginal intercourse or a sexual act” — then according to North Carolina, X can legally consent to sex.

Here’s what F.I.R.E. thinks of that:

North Carolina’s own cases and statutes dealing with nonconsensual sexual relations are instructive. Unlike Duke’s policy, they take into account both the degree of intoxication and whose decision it was to become intoxicated.

I don’t think that the North Carolina law is “instructive,” unless you mean “instructive on how to make some rapes legal.” The North Carolina law says, in effect, “if she didn’t want to get raped, then she shouldn’t have chosen to drink all that booze. What did she expect would happen?”

And F.I.R.E. looks at that law as an example of how consent should be defined. How very instructive, F.I.R.E. thinks!

So right away, F.I.R.E. has zero credibility when it comes to discussing what a reasonable definition of “consent” is.

F.I.R.E. continues:

Duke allows third-party reporting of allegations of sexual misconduct, and requires such reporting by university officials even when alleged victims choose not to come forward. Third-party complaints may even be anonymous, as the policy permits “[b]lind reporting.”

That sounds awful. It’s also a lie. From Duke’s webpage:

Students may contact the Durham Police directly (911 off campus or 560-4427/560-4609) or the GVPI office or Duke Police can help facilitate reporting. Blind reporting—filing a report without your name attached to it—is an available option with both Duke and Durham’s police departments.

So it’s police policy, not university policy — but F.I.R.E.’s letter falsely states that Duke has a blind report policy. (( The FBI Bulletin (pdf link) explains why blind reporting can be beneficial. Of course, blind reports cannot be used as evidence against anyone in court. ))

F.I.R.E. writes:

Students are said to be incapable of giving consent when they are “intoxicated,” “psychologically pressured,” or simply in a “circumstance” whereby they “perceive[]” a “power differential[]” and therefore are said to be unintentionally coerced.

I’ve already agreed with F.I.R.E. that the Duke policy discussion of “intoxication” is deeply flawed. Sadly, the rest of F.I.R.E.’s statement is simply an unfair reading, as Sarah at the SAFER blog argues:

So [F.I.R.E.’s] leap of logic is as follows: the policy acknowledges that sometimes power differentials can lead to coercive sexual situations. The policy later says that sometimes consent cannot be given if someone is being coerced. Therefore sex between two people with differing amounts of power is actually rape. Only, that last part? Isn’t actually stated anywhere. And is a gross misinterpretation of the intent of the policy as I believe it’s meant to be understood.

Finally, F.I.R.E. goes on for paragraphs and paragraphs pretending that this passage from Duke’s policy is ambiguous:

Rights of accused students. Students accused of sexual misconduct have the same rights as any student accused of a policy violation (see “The Undergraduate Disciplinary System”), which includes the right to a 120-hour (five day) notice in advance of a hearing, the right to bring material witnesses to speak on his/her behalf (written testimony of two character witnesses may be submitted to a hearing panel before the hearing begins), and the right to ask questions (directed through the hearing panel) of any witness present.

That in no way can be be reasonably interpreted as meaning that accused students have only three rights; they clearly have “the same rights as any student,” and they specify where to find those rights spelled out. But F.I.R.E., searching for an issue, pretends this is ambiguous. Here’s a typical example of F.I.R.E.’s carping about this:

Still other rights that go completely unmentioned in the sexual misconduct policy but which are mentioned in the standard UCB policy are the right to challenge panel members who might have a conflict of interest, the right “to choose the extent to which he or she shares information” (presumably meaning that a student cannot be forced to incriminate oneself), the right to rebut witness testimony (as opposed to the right to question witnesses, which is discussed above), the right “to present additional witnesses or information at the hearing,” and the right “to be found responsible only if the evidence meets a clear and convincing burden of proof.” Do these rights exist in sexual misconduct hearings or not? If they do exist in sexual misconduct hearings, why is that not made clear?

But it is made clear. “Students accused of sexual misconduct have the same rights as any student accused of a policy violation” is not ambiguous.

Duke’s new sexual misconduct policy could be better, and I hope they’ll improve it. But I frankly doubt that any improvements — other than having no sexual misconduct policy whatsoever — will satisfy the folks at F.I.R.E.; their critique simply isn’t made in good faith.

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) ((UPDATE: You can read the follow-up post here.)) — 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. ((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.)) 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).