Joanne Jacobs applies her usual deadpan to Duke’s new policy on campus sex, which she describes thus:
A person seen as “powerful”—such as a varsity athlete—may “create an unintentional atmosphere of coercion,” the policy states. For the “powerful,” it’s not just that “no” means no and silence means no. “Yes” means no too.
In addition, sex with someone who’s been drinking—not like that ever happens—is considered a form of rape because the policy considers any level of intoxication makes a student unable to consent to sex.
The document itself is as coruscatingly stupid as you’d expect. It never ceases to amaze me how brain-dead college administrators are about student drunkenness:
The use of alcohol or other drugs can have unintended consequences. Alcohol or other drugs can lower inhibitions and create an atmosphere of confusion over whether consent is freely and effectively given. The perspective of a reasonable person will be the basis for determining whether one should have known about the impact of the use of alcohol or drugs on another’s ability to give consent. Being intoxicated or high is never an excuse for sexual misconduct.
Note the way the lowering of inhibitions is assumed to be an unintended consequence of drinking. After all, no college student would ever drink purposefully to get over feeling like a slut for wanting sex, feeling like a pervert for wanting homosexual sex, or feeling like a loser for wanting sex with someone who acts like a jerk once the clothes are back on. You might argue that students with such inhibitions should heed them rather than using alcohol to surmount them, but it’s hard to argue that they’re doing something they haven’t been in a position to consent to.
There are, naturally, helpful scenarios of sexual misconduct given, with a careful distribution of sexual orientations to show that everyone is at least hypothetically a potential sexual assailant. The actual events don’t ring particularly false, but the prissy, desiccated way we’re supposed to interpret them does. Naturally, I’m going to
homo home in on the gay guys:
Andrew and Felix have been flirting with each other all night at a party. Around 12:30 a.m., Felix excuses himself to find a bathroom. Andrew notices Felix slurring his speech. Andrew wonders if Felix went to the bathroom to vomit. When Felix returns, the two begin flirting more heavily and move to a couch. As the conversation continues, the two become more relaxed and more physically affectionate. Andrew soon suggests they go back to his room, and Felix agrees. As they walk down the stairs, Andrew notices that Felix looks unstable and offers his arm for support and balance. When they get back to his room, Andrew leads Felix to the bed and they begin to become intimate. Felix becomes increasingly passive and appears disoriented. Andrew soon begins to have sexual intercourse with him. The next morning, Felix thinks they had sex but cannot piece together the events leading up to it. This is a violation of the Sexual Misconduct Policy. Felix was clearly under the influence of alcohol and thus unable to freely consent to engage in sexual activity with Andrew. Although Andrew may not have known how much alcohol Felix had consumed, he saw indicators from which a reasonable person would conclude that Felix was intoxicated, and therefore unable to give consent. Andrew in no way obtained consent from Felix.
Okay, fine. But that omits a lot of the story that would explain how they ended up having sex. For example:
Andrew and Felix have been flirting with each other all night at a party. Felix has pretty much accepted that he’s gay, but whenever he’s attracted to a guy and thinks about doing something about it, the things his parents used to say around the dinner table about homosexuals start echoing in his head, and he gets rattled and feels like he’s stirring things up that he may not be able to handle. The attention from Andrew is making him feel terrific—attractive and interesting—but Felix isn’t sure what he’s supposed to do next. Andrew can hold his liquor pretty well, and Felix doesn’t want to look like a lightweight, so he’s trying to keep up even though he knows he’s already had enough.
Andrew is going berserk. He almost never hits it off with a guy this quickly. And Felix has no idea how cute he is—the slightly sheepish manner, the shrug, the offhand smile. When he leans forward, there’s this place where the back of his neck comes out of his T-shirt collar that Andrew wants to bury his face in. Felix seems to be getting really drunk, but Andrew, though he keeps good motor control, knows that he himself is probably no longer thinking as clearly as he feels he is. Around 12:30 a.m., Felix excuses himself to find a bathroom. Andrew notices Felix slurring his speech. Andrew wonders if Felix went to the bathroom to vomit.
When Felix returns, the two begin flirting more heavily and move to a couch. As the conversation continues, the two become more relaxed and more physically affectionate. Felix doesn’t taste like vomit when Andrew kisses him, so maybe he’s okay after all? Felix feels and smells a little sweat-damp beneath his T-shirt, and Andrew is beside himself.
Felix would never have been able to initiate that kiss, but he likes it. He’s dimly aware that his senses of touch and taste aren’t working right, but he really wants Andrew to like him and be attracted to him. He’s afraid that he’s going to look like a dork if he tells Andrew he needs to go home now but would like to see him again when he’s more sober, so he keeps responding as enthusiastically as he can while Andrew makes out with him.
Andrew soon suggests they go back to his room, and Felix agrees. As they walk down the stairs, Andrew notices that Felix looks unstable and offers his arm for support and balance. Andrew stumbles a few times along the way, and Felix giggles, a little relieved that Andrew’s also more drunk than he’d thought. When they get back to his room, Andrew leads Felix to the bed and they begin to become intimate. Felix is fighting hard to stay awake and perform well so that Andrew isn’t disappointed. Andrew actually asks once whether he’s okay, and Felix makes a huge effort to enunciate a clear “Yeah, I’m fine.” Felix becomes increasingly passive and appears disoriented. Andrew soon begins to have sexual intercourse with him. He’s keyed up, and Felix is responsive enough to keep his arms around him and to get off. The next morning, Felix thinks they had sex but cannot piece together the events leading up to it. He feels like hell: not only is he a failure at being straight, but he apparently can’t even be a faggot without screwing it up. Andrew probably thinks he’s a loser.
Andrew doesn’t, in fact, think Felix is a loser; he wonders whether Felix wasn’t as attracted to him as he thought, since he had to get so drunk before he would make out with him. Felix miscalculated, trying to distance himself from his desire for Andrew while indulging it at the same time. Andrew might have just taken Felix to home if they’d left the party earlier, but by the time they got up to go, he was too keyed up and horny to think of it. Although Andrew may not have known how much alcohol Felix had consumed, he saw indicators from which a reasonable person would conclude that Felix was intoxicated, and therefore unable to give consent. Andrew in no way obtained consent from Felix. But Felix kept drinking past his own limitations; Andrew never put a funnel into his mouth and poured vodka down it. And his own faculties of reason weren’t all operating, either.
How is it helpful, at this point, for some Student Life lackwit to wade in and tell Felix he’s a victim and Andrew he’s a perpetrator of sexual misconduct? And in general, how is it helpful to assume that in most drunken couplings it’s the bigger, hornier, more sober party who was the one doing all the “manipulating”? No one who’s ever watched men and women flirt could possibly buy that for a moment. I don’t think it does anyone (except ambitious Student Life lackeys) any good to plant the idea in undergrads’ heads that every bad sexual experience is “misconduct,” in which mustache-twirling offenders can be clearly separated from ravaged victims. Or that there’s some mystical “coercive” power inherent in high status in the social hierarchy. This is supposed to be preparing kids to handle grown-up life?