Friday, October 14, 2011

Enthusiastic Consent

In 2006, in Excellence Without a Soul, I noted that the first "Take Back the Night" rally at Harvard took place in 1980. I continued,

From this point on, the issue of rape flared up on a schedule approximating the four-year cycle of college generations—sometimes emerging after three years in the background, sometimes after five, but not every year. Different circumstances bring the issue to the fore in different years, and each time the college community starts from a different place in responding.
Right on schedule,  it's back. According to the Crimson, the University "recently appointed student representatives to a special committee to review the sexual misconduct policies of the Office of Sexual Assault Prevention and Response." I am not quite sure what to make of that sentence. Quite possibly I missed the announcement and news reporting on the creation of the committee, but this is the first I have seen of it in either Harvard announcements or the student press. In any case, I seriously doubt that it is the OSAPR itself that creates sexual misconduct policies, de jure anyway (I thought it was the Faculty). Be that as it may, the revival of the "what's rape?" issue seems to be due to the series ("slew," in the Crimson's scrupulously objective journalese) of Title IX complaints against universities, including the Harvard Law School.

The article itself is about a delay in consulting students. But what is rather arresting, if you will pardon the expression, is this passage in the reporting. Instead of the legal definition of rape--sex is rape only when the victim refuses or is incapable of refusing--one of the students

… said that she and other students on the committee hoped to push the University instead toward an “enthusiastic consent” model, in which an incident can be called rape in the absence of affirmative agreement.
“The only people who lose out in this model are the rapists,” said [another student], who had also intended to serve on the committee.
[The first student] said that she plans to discuss the stay on student involvement with Rankin, but she might eventually consider leading a “student protest” or “something more radical” than acting through administration-approved channels if she feels that student voices on this issue are not being heard.
The question of sex with a partner who was agreeable but not eager sounds like a chapter in a book about improving your marriage, not a standard for prosecution of a crime. But the change would definitely have the effect of increasing the conviction rate. One is reminded of Humpty Dumpty: "When I use a word, it means just what I choose it to mean--neither more nor less." The student is correct: If rape is redefined to mean sex with consenting but unenthusiastic partners, the "rapists" will, by definition, be the losers. Only that category will be rather broader than it used to be. 

I am sorry to see this no-win issue coming around again, and sorry that it seems to be getting off to a bad start, with threats of radical action before the committee has even begun its work.

Sorry, but not surprised.

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