Tuesday, April 13, 2010

Duke University's New Sexual Misconduct Guidelines

I learned that Duke University has updated their sexual conduct policy from reading the Washington Examiner: Duke rape policy if you're perceived as powerful it wasn't consensual by J.P. Freire. He wrote:


The bottom line? You’ve committed “sexual misconduct” if you’re considered “powerful” — i.e. a lacrosse team player — and you have engaged in something that falls into what the university broadly defines as “acts of a sexual nature. [...]

Most disturbing is that this policy so broadly defines “sexual misconduct” that it makes no clear distinction between genuinely horrifying behavior and non-offenses.
The claim in the title of this post is a false once since the reference to power in the sexual conduct policies relates to use of that power against someone who hasn't freely consented. Freire is only one of many people who position themselves as against false claims while making one or more of them themselves.

Another problem with this criticism is that Freire chooses to label some non-consensual sexual actions as non-offenses simply because they are not horrifying. That is a position which dismisses many sex crimes, some of which are felonies. Who knows how violent a sex crime needs to be before everyone will agree that a particular sex crime is horrifying?

If sex offenders who prey on children can choose to elevate their victims to being like partners before being arrested and before being civilly committed, this false partnership is an even more attractive view for those who prey on teen and adult victims. This false claim of partnership can help sex offenders convince themselves and others that they have done nothing which merits negative consequences. This false claim plays directly into the denial narrative which positions most non-stranger sex crime victims as having suffered only from regret.

From many of the opinions I've heard about what doesn't count, the amount of violence these people need to view nonconsensual sexual actions as a serious matter is much higher than for any other crime. The excuse is often that sex crimes are serious therefore most sexual actions against another person's will should never be against the law or against any conduct policies. This excuse uses the claim of seriousness to justify not taking most sexual offenses seriously.

Groping is one of those offenses which often gets dismissed in the name of taking sexual offenses seriously since the victim is not physically injured. But video from a donut shop which shows a man identified as a health inspector groping a woman during the inspection shows that this behavior should not be dismissed as something which should be allowed by the law or by any policy. Since health inspectors can shut down businesses they have power which they can abuse.






Unfortunately, even with video evidence there are those who view groping by someone in a position of power as a non-offense such as several commenters on a post about this accusation. The first commenter finds fault only with the inspector's failure to notice a security camera. The second one calls her a faker. The third commenter calls her a prostitute. Another commenter claimed it takes two to tangle and claimed she was all over him. Another claimed she allowed this to happen.

This last claim is often made when someone's response is delayed or muted due to shock or fear. Truly reasonable people do understand that responses or non-responses which come from shock or fear are not indicators of consent. If they did not understand this then they would consider a delayed or muted response to an armed robber to be consent. The issue then is not understanding, but bias.

All of these anonymous commenters who expressed their bias are likely to support Freire's position since they eagerly disregard this woman breaking free only to be grabbed again and they disregard her statements about what the inspector did without her consent when her husband wasn't in the shop.

A university's sexual code of conduct policy needs to ban all actions which are sex crimes in that jurisdiction. If it does not then the university is communicating a willingness to tolerate sex crimes. Freire's standard, which too many people still use in place of the law, allows many sexual assaults to flourish.

If Freire has no problem with certain actions without consent then that standard only applies to actions directed at him. If he wants to announce that he is fine with others using their position of power against him or if he is fine with being groped without his consent, then he can announce his willingness to have those actions directed at him.

What Freire doesn't have a right to do is to negate or restrict other people's rights when it comes to sex and sexual interactions. It doesn't matter if he isn't horrified by the violations of other people's rights or by the misuse of power against them.

When Freire quotes from the Duke policy to prove the claim in the title of his post he quotes the following from the new policy:


Touching or attempted touching of an unwilling person’s breasts, buttocks, inner thighs, groin, or genitalia, either directly or indirectly; and/or rape, forcible sodomy, or sexual penetration (however slight) of another person’s oral, anal or genital opening with any object. Sexual misconduct also includes sexual exploitation, defined as taking nonconsensual, unjust sexual advantage of another for one’s benefit or the benefit of another party. These acts may or may not be accompanied by the use of coercion, intimidation, or through advantage gained by the use of alcohol or other drugs. (emphasis mine)
Nothing in this quoted section applies to people who are willing and who freely consent.

When I read the policy what I noticed and what critics of this policy most likely noticed is that it eliminates the most popular excuses used when the testimony of the person who reported sexual misconduct cannot be discredited as a lie.

Many people who oppose the heart of this policy will claim they are seeking to protect rights but if their opposition disregards people's right not to be subjected to unwanted sexual actions then they are not true defenders of rights, but are only using rights when it is convenient for them to do so.

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posted by Marcella Chester @ 8:37 AM   3 comments links to this post

3 Comments:

At April 13, 2010 11:15 AM, Anonymous gidget commando said...

When I read the policy what I noticed and what critics of this policy most likely noticed is that it eliminates the most popular excuses used when the testimony of the person who reported sexual misconduct cannot be discredited as a lie.

THIS is why many people will have their knickers in a twist. They won't be able to pretend they're "anti-rape" anymore...as in, "I disapprove of rape, but (fill in the blank with your favorite piece of rape apologia)." It will make people confront their own biases, even the deeply hidden ones, that makes us humans squirm.

Keep up the great work!

 
At April 13, 2010 12:49 PM, Blogger JENNIFER DREW said...

I wonder how many men support this claim that an individual has the right to engage in sexually assaulting a woman because the right to commit sexual assault supposedly supercedes a woman's right not to be subjected to sexual assault.

Whose rights are these individuals protecting, when they claim sexual harassment/sexual assault is not a crime - is it mens' pseudo right of unlimited sexual access to women?

If these individuals believe it is acceptable and a right for anyone to engage in sexual assault then this means any man can subject another man to sexual assault and it is not a crime.

The video clearly showed the male did engage in sexually assaulting a female but because so many men and some women too refuse to accept male sexual violence occurs, particularly when a male abuses his position of power, they have to focus on attempting to discredit the female victim.

 
At April 20, 2010 5:43 PM, Anonymous Anonymous said...

Thank you for all your excellent comments (including all those polite, cogent responses to the rape apologists therein) at the Atlantic / Kaminer editorial on the same subject.

 

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