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Last week, Wendy Kaminer lambasted Duke University’s new sexual assault policy, which is centered upon the idea that “consent is an affirmative decision to engage in mutually acceptable sexual activity given by clear actions and words.” In an essay onThe Atlantic, Kaminer wrote that a “committee of virginal bureaucrats would be hard pressed to draft a more ridiculous policy” than that one. Surely, there are productive arguments to be had about how best to turn the intricacies of sexual consent into a workable policy on a diverse college campus. Unfortunately, Kaminer begins her criticism by ridiculing the idea that touching another person’s genitals without their consent is wrong. She explains:
Celibacy is probably not a feasible option for most undergraduates, but students at Duke University may want to consider it anyway. Duke’s new rules governing sexual misconduct and coercion are so vague, subjective, presumptive of guilt, and oblivious to the dynamics of consensual sexual relations that they pose a risk of prosecution even for students engaging in innocent foreplay. Sexual misconduct at Duke includes “inappropriate (or non-consensual) touching,” as well as rape; “inappropriate touching” and “acts of a sexual nature” that require clear consent include (“but are not limited to”) touching and “attempted touching” of an “unwilling person’s” erogenous zones, “either directly or indirectly.”
Kaminer continues by stating, “I don’t know what constitutes a non-consensual, indirect, attempted touch, but I wouldn’t try it at Duke.”
Really? Surely Kaminer, an extremely accomplished lawyer, can manage to understand three different legal concepts at one time. Touching a person in a sexual manner without that person’s consent is sexual assault. And if you touch that person sexually with something other than your hand, it’s still sexual assault. And if you try to touch that person sexually with something other than your hand, it’s attempted sexual assault.
After all, it’s not as if Duke just pulled the terms of its “non-consensual touching” rule out of its erogenous zone. The full Duke rule against inappropriate touching defines it as the “touching or attempted touching of an unwilling person’s breasts, buttocks, inner thighs, groin, or genitalia, either directly or indirectly.” The Duke rule is eerily similar to the standard applied to everyday citizens in jurisdictions across the country. In D.C., for example, “misdemeanor sexual abuse” is defined as engaging “in a sexual act or sexual contact with another person . . . without that other person’s permission,” where “sexual contact” is “the touching with any clothed or unclothed body part or any object, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person.”
It’s possible that Kaminer, a career legal expert, is unaware that groping exists, and that it is not legal. But I suspect that what’s really going on here is that Kaminer is reluctant to recognize this very real, very much illegal form of sexual assault because of where it takes place—-college.
In the United States, the cultural narrative surrounding a college student’s sexual experience tends to by extremely hypersexualized. It’s not just that undergraduates are assumed to be promiscuous—-it’s also that the sexuality of college students is presented as “out of control” and “gone wild.” The subtext here is that when people choose to pursue an undergraduate degree, they must also necessarily abandon their autonomy over their bodies and their right to choose their own sexual experiences. Underlining these assumptions is a deeply warped attitude toward sex: Because many college students choose to have sex—-and sometimes, lots of it—-we deny them to right to ever choose not to do it.
Because we hypersexualize college students in this way, we tolerate sexual assaults on college campuses that we would never tolerate in other communities—-in the workplace, in public spaces, in society at large. As I noted earlier, the non-consensual, indirect, attempted touches that Kaminer is so confused about are illegal in most places. And when those types of crimes are committed within certain communities, they also constitute sexual discrimination. Thanks to Title IX of the Education Amendments of 1972 and Title VII of the 1964 Civil Rights Act, such discrimination is outlawed in education and employment, respectively. Despite these parallel protections, I suspect that college sexual assault skeptics like Kaminer would be less eager to discredit a workplace sexual harassment policy that prohibits employees from sexually assaulting their co-workers at work functions.
Meanwhile, as long as a sexual assailant attends the same university as his or her victims, Kaminer is fit to explain away illegal groping as “innocent” and “well-meaning,” dismiss victims as “self-proclaimed,” and determine sexual coercion to be “imagined.” Administrators who are interested in protecting college students against sexual assault are ridiculed as “virginal,” furthering the idea that college students must either embrace a climate of non-consensual sex or abstain entirely. Kaminer then goes on to argue that college students who prefer their sex to be entirely consensual have no place in the university setting at all: “Intellectual debate cannot thrive, individual liberty cannot survive, and ‘healthy sexual relationships’ cannot develop in a university that seeks to eradicate ‘personal affronts,'” she writes. In short, if you can’t stand a little groping, perhaps higher education is not the place for you. If that’s not educational discrimination, what is?