Wednesday, September 5, 2012

Part II: The University of Montana says sex after 'guilt tripping' is assault, and why that is wrong

According to the video series that all students at the University of Montana are required to watch in order to stay enrolled -- including the ones who will adjudicate sexual assault hearings -- the following is taught:

“The overwhelming majority of assaults, 82%, are perpetrated by acquaintances, friends, or family members who use coercion to assault. Coercion – pressuring, guilt tripping, intimidating – can be just as forceful and physically disempowering as physical violence.”

Punishing consensual sexual behavior obtained by supposed emotional or verbal “pressuring,” typically called “sexual coercion,” has its roots in an extremist tradition of rape advocacy that encourages purported victims to engorge the definition of “rape” to include all manner of alleged violations that are not “rape.” The problem is that 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. But because they asked in way that was too boorish, too overbearing, or too insensitive, for the first time ever, 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.

The University of Montana is simply taking a page out of the playbook of NCHERM, the organization that advises colleges across America on their sexual misconduct policies. It 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 -- read it carefully:
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 guilt-tripped 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 held responsible for Amanda’s choice.

It is important to emphasize that 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 our college campuses. Bill seems to be a boorish, immature and selfish young man, but based on the limited information available 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.

Until now, the law has never been a clearinghouse to redress every less than ideal sexual encounter. Katie Roiphie once summed it up in a 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.”

The University of Montana's policy, and NCHERM’s example, above, accomplish the seemingly impossible task of insulting both genders at once: they insult men by telling them they are akin to rapists even when they ask and get permission for sex, and they insult 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.

The University of Montana's brand of “sexual coercion” fails on both counts. By any measure, 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 the University of Montana's policy is, note that even 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).

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?  Where women feel pressured, in Amanda Hess's words, to "defend their femininity" by saying no even when they want sex?

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? At what point does a little nagging become excessive, unreasonable 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 it is insulting to both genders.

A policy bordering on pathology

The expansion of the definition of rape beyond all recognition has its roots in the gender-divisive extremism of radicals who preach a kind of gender get-evenism. Time Magazine 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 the University of Montana is telling young men that when a woman says “yes,” they are still rapists because they didn’t ask in some indistinct 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. 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 the University of Montana prefers to punish, by suspension or expulsion, boorish young men who convince women to have sex, rather than put the women through the bother of just saying “no” and walking away if they don't want to do it. And that is a policy bordering on pathology.