Sexual Indiscrimination

by Lady Liberty
02/19/2003

Some years ago, it became common for colleges to institute sexual codes of conduct on campus. Obviously, something so serious as rape or sexual assault has never been anything but a crime. But accusations of date rape or sexual harrassment, especially in a society that's become lightning quick to sue, made many university legal departments realize that school policies had to be clearly - and exhaustively - stated for students.

About ten years ago, one college (I believe it was Oberlin, but could be mistaken) made national news with its policy because of its minutely defined rules. As I said, I don't remember for sure which college received so much publicity at the time, but I remember well the policy because I was assigned it as a debate topic in a class I was taking at the University of Pittsburgh.

As many of you are doubtless aware, debaters are required to take both sides of an argument at one time or another. I was able to find many arguments against this particular code of conduct largely because it was, at least to my mind, the very definition of "overkill". For example, the policy said that every individual instance of physical contact required an individual request for permission and an individual, verbal consent. In other words, under this policy a boy would not only have to ask permission to kiss a girl, he would literally have to ask for each and every kiss separately and individually. And if she were to lean in, with her eyes closed, and say, "Mmmmm hmmmmm" in response to one of his requests, he'd have to stop immediately because anything less than a clear spoken, "Yes" was defined as a "No".

Certainly, unwanted advances shouldn't be pursued. At best, it's an annoyance. Taken to extremes, it's assault. But a lengthy Q & A session interspersed with what are perfectly normal young adult activities is an extreme of its own, and to make matters worse, is unnecessary. If a boy reaches for a girl's hand and she pulls it away, that's a pretty obvious "no". If a man leans in to kiss a woman and she ducks, he can safely assume she'd rather not lock lips with him. If hands wander and are pushed aside, that, too, is a "no" . And if the duck and the push aren't sufficient to deter some of the thicker-headed swains, it's safe to assume that a spoken word or two is forthcoming and will be unambiguous.

Aside from the fact that a cumbersome "May I?" system is, well, cumbersome, there comes a point in amorous activity where only nonverbal cues are likely, or even possible. Even then, the pushing aside or pulling away system of saying "no" is still in effect. It's important, of course, that men understand (and to be fair, the vast majority of them do) that "no", whether verbally or non-verbally, expressed means "no". If the "no" is ignored, the only way for the man to proceed further is to use force. And at that point, under any policy or no policy, a crime is being committed. Any accusations of such crimes are - and should be - taken very seriously. It's patently obvious that force is never okay, and that any man who engages in it should be both kicked out of a given school as well as prosecuted criminally.

Ongoing concentration on the minutae of relationships, however, has continued to move conduct policies from the ridiculous to the unbelievable. Now young men are apparently supposed to know that, even when a woman says "yes" , she might mean "no". There's no guidance for men as to just how to tell that this is the case, but they can get in a whole lot of trouble if they mistake a woman's intent. Worse still is the notion that if a woman says " yes", and she means "yes", but later decides she should have said "no" , her answer was "no" and the man is in trouble again. 

Do you think this sounds extreme? Do you believe that I'm exaggerating for effect? I wish I were. But on January 6, 2003, the California Supreme Court ruled by a margin of 6-1 that rape can occur even after consent was given. In the case that generated the ruling, a young woman consented to have sex with a young man. During intercourse, she told the young man she needed to go home. As he continued with what he was doing, she told him twice more that she had to go home. In her testimony, the girl said the boy continued for another whole "minute to minute and a half" after her third request - a total of about five to six minutes after she first said she should go home. 

The judges declared that the girl's statement that she wanted to go home should be interpreted as withdrawal of consent, and the majority ruled that the withdrawal of consent effectively nullified her original consent to the act. The majority opinion stated that "the offense of forcible rape occurs when, during apparently consensual intercourse, the victim expresses an objection". The sole dissenting judge - a woman, by the way - wrote that the majority didn't give any suggestion as to what might constitute a "withdrawal of consent" or what amount of force might turn consensual sex into rape.

This kind of idea isn't new. In fact, it isn't even the biggest stretch of the definition of rape I've heard. Several years ago, I was privy to a discussion in an Internet chatroom where several women were talking about rape. One of them claimed that, if a young woman goes to bed with a man and has consensual sex but regrets it the next morning, she's been raped. I thought the very notion sounded crazy. Oh, sure, plenty of women should have thought twice before casually ending up in bed with some man or another. And there's no doubt that a number of them - unfortunately, myself among them - have awakened with regrets. But a stupid decision or a moment of irresponsibility has nothing to do with the guy who took advantage of that bad choice the night before. Those of us who make bad choices must, at the very least, share the blame for them. And yet another woman in the chatroom chimed in with her agreement: morning after regret equals rape the night before.

This kind of attitude represents a grave danger to men everywhere. On college campuses that employ policies like the one I mentioned earlier - and there are plenty of them today - even an accusation of sexual misconduct can result in serious repercussions. Oftentimes there are no police or courtrooms involved, but solely a largely secret hearing conducted by school officials and students where significant weight is given to the word of the accuser, and constitutional protections don't apply to the accused.

There's another aspect of defining rape so broadly that also deserves attention. I admitted that I've been in a situation where I've regretted the night before. What I didn't tell you is that, about twenty years ago, I was forcibly raped. As a woman who has found herself in both circumstances, I can personally assure you: there is absolutely zero resemblence between the two situations. To cry "rape" for no reason other than a denial of personal responsibility not only threatens the rights and reputations of innocent men, it trivializes the anguish of the woman who was genuinely violated. Either is a good reason to re-evaluate campus codes. And both should certainly have some bearing in subsequent reviews of court decisions like the one made by the California Supreme Court in January. At least, for the sake of men and women alike, let's hope that's the case.

Lady Liberty