Monday, March 12, 2012

The legal infirmities in punishing 'sexual coercion'

More and more colleges are punishing men for engaging in a form of consensual sexual behavior obtained by supposed emotional or verbal “pressuring.” They call it “sexual coercion,” and it sanctions men not for forcing themselves on, or physically threatening, women, but for doing nothing more than nagging for sex. Men are being punished for doing precisely what, for decades, society has been telling them they’re supposed to do — ask for sex.

Sexual coercion is an amorphous blob of a concept that is defined in myriad ways. No rational person questions policies that punish sex procured by physical threats. That’s not what is at issue here. The policies at issue punish students for sex procured after “unreasonable” verbal or emotional pressuring.

The school can invalidate a woman's manifested assent by later deciding that the man’s conduct in obtaining it was too boorish, too overbearing, or too insensitive. Most importantly, for the first time, men are being held responsible for sexual misconduct even though their “victims” have reasonable alternatives to engaging in the sex act but choose not to exercise them.

NCHERM, the organization that advises colleges across America on their sexual misconduct policies, has a model sexual misconduct policy, found here, that has been adopted in whole or in part by colleges across America. On page 9 is found an example of  sexual coercion:

Amanda and Bill meet at a party. They spend the evening dancing and getting to know each other. Bill convinces Amanda to come up to his room. From 11:00pm until 3:00am, Bill uses every line he can think of to convince Amanda to have sex with him, but she adamantly refuses. He keeps at her, and begins to question her religious convictions, and accuses her of being “a prude.” Finally, it seems to Bill that her resolve is weakening, and he convinces her to give him a “hand job” (hand to genital contact). Amanda would never had done it but for Bill’s incessant advances. He feels that he successfully seduced her, and that she wanted to do it all along, but was playing shy and hard to get. Why else would she have come up to his room alone after the party? If she really didn’t want it, she could have left. Bill is responsible for violating the university Non‐Consensual Sexual Contact policy. It is likely that a university hearing board would find that the degree and duration of the pressure Bill applied to Amanda are unreasonable. Bill coerced Amanda into performing unwanted sexual touching upon him. Where sexual activity is coerced, it is forced. Consent is not effective when forced. Sex without effective consent is sexual misconduct.
(Emphasis in original.) 

In NCHERM’s example, Bill “convinced” Amanda to give him a hand-job — he asked, and she agreed. She willingly stayed in his room for hours, apparently listening to his boorish and pathetic entreaties. Amanda had a reasonable alternative to engaging in the sex act but chose not to exercise it: at any time she was free to say “good night” and to get up and leave. She didn’t do it. Bill is allegedly responsible for Amanda’s choice.  Giving a horny college guy a hand-job because he wants it, or to shut him up, or because the woman wants to foster a relationship with him and sees that as a way to do it, is not sexual misconduct in any setting other than the academy. Bill may be many things – boorish, immature and even selfish – but based on the limited information available to us in NCHERM’s example, he is not a rapist and shouldn’t be punished because he asked for sex in a way Amanda later decided was offensive.

Rape law has never been a clearinghouse to redress every less than ideal sexual encounter. Katie Roiphie once summed it up in a landmark New York Times piece: “With their expansive version of rape, rape-crisis feminists are inventing a kinder, gentler sexuality. Beneath the broad definition of rape, these feminists are endorsing their own Utopian vision of sexual relations: sex without struggle, sex without power, sex without persuasion, sex without pursuit. If verbal coercion constitutes rape, then the word rape itself expands to include any kind of sex a woman experiences as negative.”

NCHERM’s example, above, accomplishes the seemingly impossible task of insulting both genders at once: it insults men by telling them they are akin to rapists even when they ask and get permission for sex, and it insults women by suggesting they are not free moral agents capable of saying “yes” when they want sex, and “no” when they don’t.

Fatal legal impediments

There are at least two fatal, insurmountable legal problems with this kind of “sexual coercion.” First, it punishes acts that are, by any rational standard, consensual. Second, prohibitions against sexual coercion do not pass due process muster because they are not sufficiently definite to warn the accused that he’s violated a policy.

Consent. Consent in the rape milieu has its roots in contract law, and it is there that we need to seek guidance. Not all agreements formed with apparent assent are legally binding. Duress is a common law concept employed to invalidate contracts due to the absence of the kind of freely given consent that society has decided is necessary to bind people to their promises. The classic example is a loaded gun pointed at someone’s head with a threat that “either your brains or your signature will be on the contract,” per Don Corleone. A contract is voidable for duress if (1) the victim’s manifestation of assent has been induced by an improper threat, and (2) the victim has no reasonable alternative except to manifest assent.

NCHERM’s brand of “sexual coercion” fails on both counts. Asking for sex, even repeatedly, is not an improper threat, and being able to say “no” and to get up and leave the guy’s room is a reasonable alternative. End of inquiry. Big Sister needs to get out of the bedroom.

To illustrate how extreme NCHERM’s policy is, note that legal scholars sympathetic to the feminist rape agenda accept the approach referenced above – because it is the only approach that works: “When a complainant believes that he or she does not have any alternative choice but to submit to unwanted sexual demands, even a verbal ‘yes’ does not necessarily indicate genuine consent.” M. Buchhandler-Raphael, The Failure of Consent: Re-Conceptualizing Rape as Sexual Abuse of Power, 18 Mich. J. Gender & L. 147, 183 (2011).

The example cited by the legal scholar to support this proposition is a case where a woman gave a teen male and his friend a ride home. When they stopped in a secluded area, the teens told her she would not be able to leave until she had sex with them, so she ostensibly gave her permission. Assuming that she reasonably felt threatened by the young men’s words, as the legal scholar seems to accept, the woman’s ostensible consent was fatally tainted because she had no alternative but to engage in sex. That example is qualitatively different from NCHERM’s, and it underscores how extreme NCHERM’s policy is.

Due process. Our criminal law is not a guessing game. A valid criminal statute puts the public on clear notice as to the conduct that is forbidden. “A penal statute, . . . to be valid, must be sufficiently definite to show what acts the legislature intended to punish.” William Lawrence Clark et al, A Treatise on the Law of Crimes at 59 (1996). This is a component of due process. “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 law that does not meet that standard is unconstitutionally vague.

College sex policies should not be free-floating standards of purported wrongdoing and should never punish criminality “in the air.” Fundamental notions of fairness dictate that college rules of conduct be sufficiently definite to warn the accused when he’s in violation of them.

Look at NCHERM’s definition and decide for yourself if you can pinpoint when sexual coercion occurs. According to NCHERM’s Model Policy: “Consent cannot be procured by . . . coercion. Coercion is unreasonable pressure for sexual activity. Coercive behavior differs from seductive behavior based on the type of pressure someone uses to get consent from another. When someone makes clear to you that they do not want sex, that they want to stop, or that they do not want to go past a certain point of sexual interaction, continued pressure beyond that point can be coercive.” (Page 7)

The model policy further states: “There is a difference between seduction and coercion. Coercing someone into sexual activity violates this policy just as much as physically forcing someone into sex. Coercion happens when someone unreasonably pressures someone else for sex.” (Page 2)

Let us analyze. What does “unreasonable pressure” mean in a culture where sex roles of pursuer and “hard to get” have been fairly divided along gender lines for eons?

The guy can ask for sex, but he can’t ask too much, and he might be expelled if he crosses some indistinct, blurry line that’s about as clear as a dense New England fog. Does a “no” at 7:00 o’clock mean the topic of sex is off-limits? For how long? Until 10:00 o’clock? Midnight? The entire night? When does asking become nagging? Does the policy prohibit any nagging for sex whatsoever? Is a little nagging acceptable? At what point does a little nagging become excessive nagging? When will one more nag be enough to expel a young man? When does “seduction” magically turn into “coercion”? There is no mistaking midnight for noon, but at what point does twilight become night?

To say that the contours are fuzzy is an understatement. No one — no one — can be sure at what point the line is crossed. As a law, it is unworkable. As a policy, it is grossly unjust to men and insulting to both genders.

Actual school policies

Here is a sampling of schools that follow the NCHERM definition, or otherwise include “coercion” in their definitions of “consent” — and this list is by no means exhaustive. It’s the tip of the iceberg to illustrate the breadth of the effort to punish sex procured by verbal or emotion pressuring:

Some schools parrot the NCHERM model policy (page 7) definition of coercion, above: Colorado State University-Pueblo; Loyola University Chicago; Franklin University. Other schools parrot page 2 of the NCHERM model policy: Kean University (“There is a difference between seduction and coercion. Coercing someone into sexual activity violates this policy just as much as physically forcing someone into sex. Coercion happens when someone unreasonably pressures someone else for sex.”). Notre Dame College also buys into NCHERM’s “coercion” versus “seduction” distinction: “Consent cannot be procured by use of physical force, compelling threats, intimidating behavior, or coercion. Coercion is unreasonable pressure for sexual activity. Coercive behavior differs from seductive behavior based on the type of pressure someone uses to get consent from another.”

Other schools attempt, without success, to better define the parameters of “coercion”: Gettysburg College’s definition is singularly unhelpful and stretches the limits of vagueness: “Coercion exists when a sexual initiator engages in sexually pressuring and/or oppressive behavior that violates the norms of the community, such that the application of pressure or oppression causes the object of the behavior to engage in unwanted sexual behavior. Coercion may be differentiated from seduction by the repetition of the coercive activity beyond what is reasonable, the degree of pressure applied, environmental factors such as isolation and the initiator’s knowledge that the pressure is unwanted.” Dickinson College employs language almost identical to Gettysburg College’s definition.

Trinity University has a definition of “coercion” that requires men to be mind-readers: “There is a world of difference between seduction and coercion. Seduction implies that both people involved are ‘playing the same game.’ Coercion on the other hand occurs when one person does not want to ‘play along.’ Seduction becomes coercion; coercion begins not when the sexual advance is made, but when someone pushes past the point of realization that the person does not want to be convinced.”

Other schools punt and leave the definition of “coercion” up to amorphous “reasonable” standards: University of Vermont (“Consent is communicated either by words or clear, unambiguous actions that are not achieved through manipulation, intimidation, fear or other acts that a reasonable person would construe as coercion.”) Columbia’s policy provides: “The use of coercion in instances of sexual assault involves the use of pressure, manipulation, substances, and/or force.”

The policy handbooks of some schools just mention that “coercion” is prohibited without bothering to try and define it: Dennison University; Marquette University; Clemson University; Syracuse University; Duke University; Wesleyan University.

Kansas State University is, at least, honest in acknowledging that by prohibiting sex by coercion, it is going beyond the commonly understood definition of “sexual assault”: “The Kansas State University policy prohibits not only those acts commonly understood to constitute ‘sexual assault,’ but also all attempts to coerce sexual activity. Individuals can be in violation of the Kansas State University policy without being in violation of the Kansas legal statutes.”

A policy bordering on pathology

Transmogrifying “sexual coercion” into a punishable offense has been a progressive dream for decades. “Sexual coercion” has its roots in an extremist tradition of rape advocacy that encourages purported victims to engorge the definitions of “rape” and “sexual assault” to include all manner of alleged violations that are neither “rape” nor “sexual assault.” Time once famously wrote: “Catherine Comins, assistant dean of student life at Vassar, . . . sees some value in this loose use of ‘rape.’ She says angry victims of various forms of sexual intimidation cry rape to regain their sense of power. ‘To use the word carefully would be to be careful for the sake of the violator, and the survivors don’t care a hoot about him.’ Comins argues that men who are unjustly accused can sometimes gain from the experience. ‘They have a lot of pain, but it is not a pain that I would necessarily have spared them. I think it ideally initiates a process of self-exploration. ‘How do I see women?’ ‘If I didn’t violate her, could I have?’ ‘Do I have the potential to do to her what they say I did?’ Those are good questions.’” Time correctly noted: “Taken to extremes, there is an ugly element of vengeance at work here. Rape is an abuse of power. But so are false accusations of rape . . . .” See here.

Writer Joanne Jacobs aptly explained: “In the largest survey of campus date rape, 43 percent of women classified as rape victims had not realized they’d been raped.” Was this because women were hesitant to label rape as a crime? “Hesitant to label rape a crime?” Ms. Jacobs scoffed. “No, they were hesitant to label having sex ‘when you did not want it because you were overwhelmed by continual arguments and pressure’ as rape, which is what happened to most of the ‘victims.’ They weren’t raped; they were nagged.”

Writer Sarah Overstreet once wrote: “Our college students need the tools of personal power and responsibility, not a false definition of rape. So do we all. Lacking the skills or confidence to resist verbal coercion doesn’t make it a crime.”

For decades we’ve preached that when a woman says “no,” the man must stop. Now we are telling young men that when a woman says “yes,” they are still rapists because they didn’t ask in a politically correct manner. They’ve trivialized sexual assault to the point that women who truly do not have reasonable alternatives except to give in to sexual abuse are being lumped in with women who merely regretted the exercise of their own free will the morning after.

While colleges are reimagining “proper” male sexual conduct in an effort to construct a progressive, supposedly female-friendly, sexual utopia, why aren’t many more men being punished for “coercion”? The reason “coercion” policies are not expelling college men in massive numbers is because college women, largely, aren’t buying the notion that their male peers are predators, and they aren’t reporting the men’s “misconduct.”

Heather MacDonald summed it up: “One group on campus isn’t buying the politics of the campus ‘rape’ movement, however: students. To the despair of rape industrialists everywhere, students have held on to the view that women usually have considerable power to determine whether a campus social event ends with intercourse.”

Still, though, the fact that policies are in place to allow women to use the power of a college tribunal to punish men for being nothing more than sexual naggers is unjust in the extreme. At their core, these campus policies are premised on a smug, PC elitism that seeks to smack down what their purveyors regard as undeserved male privilege. They are making a statement that masculinity itself must be modified to make campuses less burdensome for the historically oppressed gender.

We have sadly reached the point where American colleges prefer to punish, by suspension or expulsion, a male student who convinces a woman to have sex, rather than put the women through the bother of just saying “no” and walking away if she doesn’t want to do it. And that is a policy bordering on pathology.