Dear Ms. Tsikalas,
I founded the Web site devoted to giving voice to persons wrongly accused of sex crimes, False Rape Society. I am forwarding a copy of this email to FIRE because it is the authority on the issues raised in this note, and the matters referenced here might be of interest to it.
I write regarding your thoughtful editorial titled "Sexual violence videos make mistakes, but don’t give up on them," found here: http://marquettetribune.org/2011/09/27/viewpoints/editorial-sexual-assault-videos-make-mistakes-but-dont-give-up-on-them-kc1-sb2-td3/.
In your editorial, you explain that Marquette is sponsoring online videos to train student leaders and incoming students on sexual assault. A previous article in the Marquette Tribune noted: "All first-year students and many student leaders are partaking in a sexual assault awareness program as part of a new initiative against sexual violence on campus." http://marquettetribune.org/2011/09/20/news/assault-bg1-sb2-td3/
I am assuming that the program referenced in that previous article is the same one you discuss in your editorial, but I am not sure that this assumption is correct. I am also assuming that the program you discuss is mandatory for first year students. Would you be able to verify?
In your editorial, you state the following:
"While the videos provide a lot of good information addressing what sexual assault actually is and how to recognize and prevent it, the valuable parts are juxtaposed with off-putting moments and absurd ideas.
"The 'typical male college student' played by an actor is offensive and completely unaware of the issues and why they are important, which seems unfair to males in general. One has to wonder why the videos could not have portrayed the character as a normal college student looking to learn more about sexual assault instead of a crass and willfully ignorant male needing to be set straight.
"Do we need such an overtly negative image of college guys? The clips describing different ways men try to pressure college women into potential assault situations, while fair and comprehensive, seem to do the job.
"If we want college men to take these videos seriously and realize the immensity of the issues, it is questionable whether this caricature is the best way to depict them."
You are to be commended for highlighting the "overtly negative" and "offensive" portrayal of the "typical male college student," as "crass and willfully ignorant," which, if your description is accurate, clearly is "unfair to males in general." I am not able to find the program in order to view it, and would very much appreciate that opportunity. Could you be able to assist in that, or to advise who might be able to help?
Your editorial raises a concern that this video presentation may constitute an impermissible invasion of students' conscience. Last year, FIRE challenged a college for making attendance mandatory at a sexual assault program that was overtly offensive to males and that sought to reengineer student thinking to conform to an ideology of the college's preference. See here: http://thefire.org/public/pdfs/ec98c2707e17186e96211e9aa553e699.pdf?direct The college backed down and make attendance at the program discretionary.
Your editorial also references "clips describing different ways men try to pressure college women into potential assault situations." I am also interested in seeing those. I note that Marquette's sexual assualt policy, found here http://www.marquette.edu/osd/policies/sexual_policy.shtml, says that a person may not consent to sex if s/he is "psychologically pressured." The clips you reference seem speak to such psychological pressure. Is that correct?
The "psychologically pressured" definition is problematic for at least two reasons:
First, Marquette's prohibition is worded so broadly that it could be applied to punish conduct that that is, by any lawful measure, consensual. A college's sexual misconduct policy cannot be a clearinghouse to redress every less than ideal sexual encounter. Marquette's policy could be applied to punish students for engaging in what is nothing more than immature and boorish sexual nagging, even though the "nagged" student had a reasonable alternative other than to engage in the sex act. By no recognized legal standard does sexual nagging or anything similar negate consent.*
Second, the language of the policy is so vague that it does not pass Constitutional muster. "The test is whether the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices." Jordan v. DeGeorge, 341 U.S. 223 (1951). A college's sexual misconduct policy cannot be a guessing game. It is entirely uncertain what "psychologically pressured" means, and it could be applied to all manner of situations that, by any reasonable measure, should not be prohibitted. Therefore, it does not adequately put the student body on notice as to what is prohibited.
I also note that, apparently, the clip shows only guys pressuring women. That, too, is problematic, and offensive, because studies show that men experience alleged sexual coercion almost as much as women. http://pubpages.unh.edu/~mas2/ID45-PR45.pdf
These are issues of serious concern to the community of the wrongfully accused. We promote respect for the critical balance between (1) punishing sexual wrongdoing, and (2) insuring that the innocent are not punished with the guilty. The matters referenced in this note and promoted by your university do not adequately respect the latter part of that balance.
False Rape Society
*The concept of consent has its roots in the common law equitable doctrine of assumpsit, based on contract. A contract is voidable for duress if a victim's manifestation of assent has been induced by an improper threat, and if the victim has no reasonable alternative but to agree. At the very least, that last part -- the "no reasonable alternative" -- is missing from Marquette's "psychologically pressured" definition.