The problem with Brown’s interim response to the White House directive to address sexual assault on college campuses is that it has chosen to address procedures and not substance. The University has refined and expanded procedures for adjudicating charges of sexual assault instead of seeking to prevent it.
Nicholas Asker ’17 goes a step further in his column earlier this week (“How sororities can fight derelict frats and rape,” Jan. 27), discussing the advantages of sororities rather than fraternities hosting parties — an idea Alan Schwarz proposed in the New York Times Jan. 19. Asker cogently addresses how to change a party environment that appears to foster sexual assault and misconduct.
But what is missing from the discussions to date is a definition of sexual assault or the criteria for it. Clarity about what constitutes sexual assault or misconduct should make it easier for students to know what is at risk in a sexual encounter, assert their rights to leave situations that make them uncomfortable and reduce the number of sexual assaults that blight the social lives of the community.
The substance of the offense can be understood through three concepts: consent, coercion and impairment. In what follows, for simplicity, I use the example of a man assaulting a woman, but I in no way believe that sexual assault is limited to that model.
It is beyond dispute that engaging in a voluntary sex act requires the consent of both parties. If a woman says “no,” no matter when, then the encounter should end. Such a “no” must be respected in every instance, at every moment of the encounter. If it is not, then the continued sexual conduct becomes a sexual assault. Gone are the days when a man can respond that when his partner said “no,” he didn’t believe her or thought that she meant “yes.”
The matter of sexual assault gets more complicated when one or both of the parties are knowingly impaired, whether by alcohol or drugs. As a general rule, if anyone is impaired, then both parties proceed at some risk. Women who are impaired are more likely to feel pressured to act contrary to their own wishes: that is, to be coerced. This results in assault. They may be silent when they would speak out if sober. They may show a reluctance to engage in sexual conduct — but that reluctance is overcome or not acknowledged by their male partner. And men may not notice or respond to women making signals in impaired states as they would if they were sober. Sexual conduct that stems from coercion or indifference to a partner’s wishes is morally insupportable and reasonably described as sexual assault.
However, when a woman voluntarily becomes impaired for the very purpose of having sex, then the sexual engagement with her partner cannot reasonably be described as an assault, even if she later regrets her decision. She is morally responsible for the consequences of her voluntary actions just as a drunk driver is for injuries and damage caused by his drunk driving. She may regret what she has done, but both parties share the moral responsibility of having acted when it would have been wiser to wait until everyone was sober and competent enough to make adult judgments about adult behavior.
If a man intentionally impairs the judgment of a woman in order to engage in sexual conduct with her, then he is likely to be committing sexual assault if he engages in that sexual conduct. That will certainly be the case when the woman does not know that she has been intentionally impaired, such as with date-rape drugs. While it is not as clear when alcohol is the instrument of impairment, alcohol and coercion are a surefire way to find oneself accused of assault unless there is a clear and convincing “yes” along the way.
If a man involuntarily impairs a woman, it is also misconduct for yet another man to take advantage of that situation and to engage in sexual conduct. It is assaultive behavior at its root, since the judgment of his partner is impaired. It is particularly dangerous when the woman who has been involuntarily impaired, such as with a date-rape drug or a heavily alcoholic drink, may not understand that her judgment has been impaired, and thus may be more easily coerced, scared or intimidated into silence or into a view that to be anything other than passive will put her at risk of physical harm or social humiliation.
Whether you agree with these distinctions, the University, which claims that it wants a more stringent standard for acceptable sexual conduct than that of the criminal law, must do more than tinker with the machinery of its quasi-criminal process. What it must do — should it wish to continue to have an in loco parentis role in student life and to reduce sexual assault and misconduct effectively — is characterize what constitutes sexual assault. That will put everyone on notice of what actions are permissible under what conditions.
While there may still be questions about a particular sexual encounter, there should be fewer, which, after all, is the stated goal of the University and the effort it is undertaking.
Dr. Pamela Foa, senior fellow at the Pembroke Center, is a former federal prosecutor.
