{"id":9965,"date":"2010-04-20T11:25:39","date_gmt":"2010-04-20T18:25:39","guid":{"rendered":"http:\/\/www.amptoons.com\/blog\/?p=9965"},"modified":"2019-08-15T01:02:04","modified_gmt":"2019-08-15T08:02:04","slug":"dukes-excellent-new-sexual-miscondoct-policy","status":"publish","type":"post","link":"https:\/\/amptoons.com\/blog\/?p=9965","title":{"rendered":"Duke’s excellent new sexual misconduct policy marred by ambiguous language about intoxication"},"content":{"rendered":"

F.I.R.E.<\/a>, a civil liberties group with a focus on colleges and universities, objects to Duke University’s sexual misconduct policy<\/a>.<\/p>\n

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<\/a>.)) — has a point regarding how Duke’s new policy deals with intoxication.<\/p>\n

First, let’s quote the Duke policy’s definition of “consent,” which F.I.R.E. takes issue with.<\/p>\n

Consent defined. <\/strong>The university\u2019s 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\u2019s responsibility to obtain consent.<\/p><\/blockquote>\n

So far so extremely <\/em>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.<\/p>\n

But I think Duke stumbles here:<\/p>\n

Conduct will be considered \u201cwithout consent\u201d if no clear consent, verbal or nonverbal, is given. It should be noted that in some situations an individual\u2019s ability to freely consent is taken away by another person or circumstance. Examples include, but are not limited to, when an individual is intoxicated, \u201chigh,\u201d scared, physically or psychologically pressured or forced, passed out, intimidated, coerced, mentally or physically impaired, beaten, threatened, isolated, or confined.<\/p><\/blockquote>\n

As usual, the biggest sticking point is intoxication. It’s certainly true that sometimes <\/em>intoxication removes “an individual’s ability to freely consent,” but the above paragraph could <\/em>be read as saying that in all<\/em> cases, any <\/em>level of intoxication removes the ability to freely consent. The policy should be rewritten to clarify that this is not the case.<\/p>\n

Later in the policy, Duke gives an example of how they intend this policy to work:<\/p>\n

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.<\/p>\n

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.<\/em><\/p><\/blockquote>\n

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.<\/p>\n

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.<\/p>\n

Furthermore, Duke relies too much on the word “intoxicated” without defining it. My guess <\/em>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.<\/p>\n

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.<\/p>\n

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 <\/em>of if the people involved are intoxicated or not.<\/p>\n

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.<\/p>\n

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.<\/p>\n

But when Duke writes that “an individual\u2019s 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.<\/p>\n

For more on Duke’s new policy, I’d recommend Amanda Hess<\/a> and Marcella Chester<\/a> (who I suspect would disagree with this post).<\/p>\n","protected":false},"excerpt":{"rendered":"

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 … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[96],"tags":[],"class_list":["post-9965","post","type-post","status-publish","format-standard","hentry","category-rape-intimate-violence-related-issues"],"_links":{"self":[{"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=\/wp\/v2\/posts\/9965","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=9965"}],"version-history":[{"count":1,"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=\/wp\/v2\/posts\/9965\/revisions"}],"predecessor-version":[{"id":25167,"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=\/wp\/v2\/posts\/9965\/revisions\/25167"}],"wp:attachment":[{"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=9965"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=9965"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=9965"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}