Sunday, October 4, 2015

TAMU and a "New" Definition of Consent in Sexual Encounters

I once represented a Texas A&M University (TAMU) student who was accused of "Improper Sexual Contact" under the the TAMU Student Conduct Code. The student did not deny the sexual contact. They maintained the sexual contact was consensual. The student was never arrested, but still faced the possibility of expulsion from TAMU for violating their Code of Conduct.

The student was eventually found not responsible of the allegation by TAMU. Unfortunately, this finding came after a incredibly anxious and stressful few weeks while they faced the prospect of being thrown out of school.

I thought about that student when I read a story in the TAMU newspaper, The Battalion, this past week. It struck me that the story was about more than just TAMU. The story's lede informed the reader:
Too better clarify the meaning of sexual consent, the university recently redefined its definition of consent before the start of the fall semester.
Sentences that begin "Too better clarify..." always scare me. This sentence was no different. According to The Batt:
The Student Conduct Code now defines consent as a 'clear, voluntary, positive verbal or nonverbal communication that all participants have agreed to the sexual activity.'
A university disciplinary proceeding in the absence of a criminal one is not really unusual. It happens many times. The university has it's own set of substantive disciplinary and procedural rules. I may not like the diminished due process, but TAMU can do pretty much what it wants under applicable law. This does not mean they should.

In this situation I can feel the political winds blowing. Campus rape has lately become a cause célèbre. The Batt story goes on to take the measure of both student and faculty about the new definition. First, the student:
Psychology senior and Aggies for Reproductive Justice President Laura Reid said the new Student Conduct Code’s definition is much more holistic than expected from such a conservative campus. 
Reid said while the state of Texas fails to provide a concrete definition of consent, university rules maintain it be ongoing throughout the sexual activity, and that a lack of an explicit 'no' does not constitute a 'yes.'
'People often react to the victims by saying, "You didn’t say, ‘no,' so it was okay,'" Reid said. 'The problem is that while the assault was taking place these victims might have been incapacitated, drunk or feeling threatened and unable to say, "no."'
"Holistic" sounds great in a sentence but depending on context can carry many hues of gray - kind of like consent in a sexual encounter.  I have no idea what Ms. Reid means by her use of the word "holistic" in the context of "conservative campus." Does she mean the new definition provides more protection for the individual making the accusation than would be expected from such a conservative campus? If so, it is almost insulting.

This is a conservative place. I bemoan the conservativeness here all the time, but really?

Ms. Reid's example of protecting the incapacitated victim in a sexual encounter is a red herring. Texas law expressly provides persons incapacitated by, among other things, alcohol or drugs, cannot consent to being sexually assaulted. I am almost positive (because I have dealt with it before) that the TAMU Conduct Code already provided an incapacitated person could not consent to a sexual encounter. As it should.

If the context surrounding the encounter - physical and circumstantial evidence - is present, then a claim of "Well, they didn't say 'no' so I figured they consented'" is just not credible. Seldom is such a claim, standing alone, going to be credible. It is almost always the surrounding context which determines consent.

More disturbing was the faculty member quoted in The Battalion story:
Marian Eide, interim director of the women and gender studies program, said a clearer definition of consent helps to protect those participating in sexual activity from miscommunication. 
'It seems to me that the idea of an affirmative consent increasing instances of false reporting is a red herring,' Eide said. 'An affirmative consent amongst two able partners is positive, and if partners are in agreement and communicative, they are actually guarding themselves from misunderstandings.'
This all starts from Ms. Eide's false premise the new definition is "clearer." A "clearer" definition would provide meaningful notice to the TAMU population of what conduct is or is not required before consent is present. This definition of consent does not accomplish this goal. I would argue it does quite the opposite. The rest of  Ms. Eide's statements to The Batt make my point, well, clear (pun intended) .

What does "'An affirmative consent amongst two able partners'" mean in a sexual encounter? What if the partners have been drinking? What if only the alleged non-consensual partner had been drinking? Does non-communicated affirmation for sexual contact stop after two beers? Ten beers? Are these drinking, as well as sexual partners, "[A]ble partners" within the meaning of her remarks? If not "able," verbal or non-verbal "[A]ffirmative consent" is meaningless, right? What does "affirmative consent" mean? Does it depend on context and circumstance? Well then, EXACTLY.

 If so, why is this definition necessary, except to provide a politically correct expedient?

Ms. Eide's remarks to the Batt then get worse. When Ms. Eide says "[A]nd if the partners are in agreement and communicative they are actually guarding themselves from misunderstandings'" what does she mean? This is another example of saying something that sounds appealing but upon examination means nothing.

Being understood, especially in a sexual encounter, is to be encouraged. However, Ms. Eide's remarks really beg the question. What is non-verbal clear affirmation of consent? How about this TAMU situation: Two students who do not know one another, meet on Northgate, go home to one of their respective homes, with one partner excusing themselves, undressing, then coming back and crawling in next to the other. Has there been a "communicative agreement?" Does it depend on what happens before and after? EXACTLY.

Does experience tell us amongst the demographic at TAMU this kind of sexual encounter happens all the time? This new definition treats TAMU students paternalistically and is potentially dangerous.

Beyond The Battalion there was not any local media coverage of this new definition. I fear criticism of the nuances of hot button topics such as alleged campus rape can lead to ruin. Ask the Duke lacrosse players. Ask members of Phi Kappa Psi at the University of Virginia.  But, hey, those were cleared up with no lasting damage, right? We have a "clearer" definition of consent now. Nothing like that could happen at TAMU. Right?

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