There is an unprecedented effort underway on college campuses across America to re-engineer by fiat male conduct toward women. Colleges are branding behavior that has never been classified as criminal as "sexual misconduct" in a misguided effort to construct a progressive, supposedly female-friendly, sexual utopia. How? By employing legally questionable policies that punish males for engaging in consensual sexual behavior obtained by emotional or verbal "pressuring" (e.g., cajoling, coaxing, or nagging). Colleges call it "sexual coercion" even though the woman was not physically threatened, and even though she had reasonable alternatives to engaging in sex but chose not to exercise them.
It is no stretch to assert that American colleges prefer to punish a male student who successfully nagged a woman into agreeing to have sex with him, rather than put the women through the bother of doing nothing more than saying "no" if she really didn't want to do it. If that sounds too outlandish to be true, read on.
More and more colleges include "coercion" in their definitions of sexual misconduct, and in the Department of Education's infamous April 4 "Dear Colleague" letter addressed to American institutions of higher learning, the Obama administration made clear that "sexual coercion" is a form of sexual harassment covered under Title IX. Given this directive, colleges will need to insure that they have a policy in place to sanction "sexual coercion." While these policies are ostensibly gender neutral, they are intended for males and applied almost exclusively to them.
What is Sexual Coercion?
Sexual coercion has its roots in the extremist tradition of rape advocacy of encouraging purported victims to engorge the definitions of "rape" and "sexual assault" to include all manner of alleged violations that are neither "rape" nor "sexual assault." Time once famously wrote: "Catherine Comins, assistant dean of student life at Vassar, . . . sees some value in this loose use of 'rape.' She says angry victims of various forms of sexual intimidation cry rape to regain their sense of power. 'To use the word carefully would be to be careful for the sake of the violator, and the survivors don't care a hoot about him.' Comins argues that men who are unjustly accused can sometimes gain from the experience. 'They have a lot of pain, but it is not a pain that I would necessarily have spared them. I think it ideally initiates a process of self-exploration. 'How do I see women?' 'If I didn't violate her, could I have?' 'Do I have the potential to do to her what they say I did?' Those are good questions.'" Time correctly noted: "Taken to extremes, there is an ugly element of vengeance at work here. Rape is an abuse of power. But so are false accusations of rape . . . ." See here.
Sexual coercion is an outgrowth of that tradition, and it lies somewhere on a "continuum of sexually aggressive behavior," down the path from common law rape, sexual intercourse procured by physical force. See here. Sexual coercion is defined in myriad ways, but at its core, it seeks punish males for sex procured after "unreasonable" verbal or emotional pressuring (e.g., cajoling, coaxing, or pleading).
Please understand, the woman agreed to have sex. But after the fact, if she complains that the sex was procured by the male's use of unreasonable pressure, the school can invalidate the woman's manifested assent by focusing solely on the male's behavior -- which was perhaps boorish, insensitive, or emotional -- used to obtain it.
If that sounds fuzzy, it is. And that's a major part of the problem. Even the purported experts are having a difficult time describing it. ". . . experts are still trying to figure out exactly how best to define sexual coercion because it encompasses so many behaviors and situations . . . ." See here. If the experts are having a difficult time defining it, a horny 19-year-old trying to figure out if his girlfriend will have sex with him doesn't stand a chance.
Sexual coercion has found its way into the definitions of "sexual assault" in many college student policy handbooks. Brett Sokolow's NCHERM spearheads the effort to institutionalize and standardize this peculiar and dangerous concept. In NCHERM's Model Sexual Misconduct Policy, which has been adopted in whole or in part by various colleges, the following appears:
"Consent cannot be procured by use of physical force, compelling threats, intimidating behavior, or coercion. Coercion is unreasonable pressure for sexual activity. Coercive behavior differs from seductive behavior based on the type of pressure someone uses to get consent from another. When someone makes clear to you that they do not want sex, that they want to stop, or that they do not want to go past a certain point of sexual interaction, continued pressure beyond that point can be coercive." (Page 7)
The model policy further states: "There is a difference between seduction and coercion. Coercing someone into sexual activity violates this policy just as much as physically forcing someone into sex. Coercion happens when someone unreasonably pressures someone else for sex." (Page 2)
What does "unreasonably pressures" mean in a culture where sex roles of pursuer-gender and "hard to get"-gender are fairly set in stone? Does a "no" at 7:00 o'clock mean the topic is off-limits for the night? Till 10:00 o'clock? Midnight? Does it preclude any nagging for sex? Is a little nagging acceptable? At what point does a little nagging become excessive nagging? When will one more nag be enough to expel a young man?
Here are a sampling of schools that follow the NCHERM definition, or otherwise include "coercion" in their definitions of "consent" -- and this list is by no means exhaustive. It's the tip of the iceberg to illustrate the breadth of the effort to punish sex procured by verbal or emotion pressuring:
Notre Dame College: "Consent cannot be procured by use of physical force, compelling threats, intimidating behavior, or coercion. Coercion is unreasonable pressure for sexual activity. Coercive behavior differs from seductive behavior based on the type of pressure someone uses to get consent from another." See here. Other schools parrot the NCHERM model policy (page 7) definition of coercion, above: Colorado State University-Pueblo: see here; Loyola University Chicago: see here; Franklin University: see here.
Other schools parrot page 2 of the NCHERM model policy: Kean University ("There is a difference between seduction and coercion. Coercing someone into sexual activity violates this policy just as much as physically forcing someone into sex. Coercion happens when someone unreasonably pressures someone else for sex."): see here.
Other schools attempt, without success, to better define the parameters of "coercion": Gettysburg College's definition is singularly unhelpful and stretches the limits of vagueness: "Coercion exists when a sexual initiator engages in sexually pressuring and/or oppressive behavior that violates the norms of the community, such that the application of pressure or oppression causes the object of the behavior to engage in unwanted sexual behavior. Coercion may be differentiated from seduction by the repetition of the coercive activity beyond what is reasonable, the degree of pressure applied, environmental factors such as isolation and the initiator's knowledge that the pressure is unwanted." See here. Dickinson College employs language almost identical to Gettysburg College's definition. See here. Trinity University has a definition of "coercion" that requires males to be mind-readers: "There is a world of difference between seduction and coercion. Seduction implies that both people involved are 'playing the same game.' Coercion on the other hand occurs when one person does not want to 'play along.' Seduction becomes coercion; coercion begins not when the sexual advance is made, but when someone pushes past the point of realization that the person does not want to be convinced." See here.
Other schools punt and leave the definition of "coercion" up to amorphous "reasonable" standards: University of Vermont ("Consent is communicated either by words or clear, unambiguous actions that are not achieved through manipulation, intimidation, fear or other acts that a reasonable person would construe as coercion."): see here. The policy handbooks of some schools just mention that "coercion" is prohibited without bothering to try and define it: Dennison University: see here; Marquette University: see here; Clemson University: see here; Syracuse University: see here; Duke University: see here; Wesleyan University: see here.
Kansas State University is, at least, honest in acknowledging that by prohibiting sex by coercion, it is going beyond the commonly understood definition of "sexual assault": "The Kansas State University policy prohibits not only those acts commonly understood to constitute 'sexual assault,' but also all attempts to coerce sexual activity. Individuals can be in violation of the Kansas State University policy without being in violation of the Kansas legal statutes." See here.
There are at least two fundamental problems with college sexual coercion policies: (1) they punish conduct that is, by any rational measure, consensual, and (2) their descriptions of sexual coercion are so vague they do not pass Constitutional muster.
I. Sexual coercion punishes acts for which there was actual consent
By punishing men for sex procured by emotional and verbal pressuring, colleges are lumping into the definition of sexual assault acts long considered by law to be consensual. Males who do what society has been telling them to do for decades -- ask for sex -- are punished for asking in a boorish, immature, or annoying manner.
Aside from the injustice to men, such a policy trivializes the experience of rape victims. Unlike "victims" of sexual coercion, rape victims did not have a reasonable alternative as to whether to submit to the act.
Consent has its roots in contract law, and the closest concept in the common law to sexual coercion is duress, a concept employed to invalidate contracts. Duress need not involve a loaded gun pointed at someone's head with a threat that "either your brains or your signature will be on the contract" per The Godfather. A contract is voidable for duress if a victim's manifestation of assent has been induced by an improper threat, and if the victim has no reasonable alternative but to agree. It is that last part -- the "no reasonable alternative" -- that is missing from sexual coercion.
NCHERM provides an example of sexual coercion in its model policy which is as chilling as it is legally misguided:
"Amanda and Bill meet at a party. They spend the evening dancing and getting to know each other. Bill convinces Amanda to come up to his room. From 11:00pm until 3:00am, Bill uses every line he can think of to convince Amanda to have sex with him, but she adamantly refuses. He keeps at her, and begins to question her religious convictions, and accuses her of being “a prude.” Finally, it seems to Bill that her resolve is weakening, and he convinces her to give him a "hand job" (hand to genital contact). Amanda would never had done it but for Bill's incessant advances. He feels that he successfully seduced her, and that she wanted to do it all along, but was playing shy and hard to get. Why else would she have come up to his room alone after the party? If she really didn't want it, she could have left. Bill is responsible for violating the university Non‐Consensual Sexual Contact policy. It is likely that a university hearing board would find that the degree and duration of the pressure Bill applied to Amanda are unreasonable. Bill coerced Amanda into performing unwanted sexual touching upon him. Where sexual activity is coerced, it is forced. Consent is not effective when forced. Sex without effective consent is sexual misconduct." (Page 9)
In NCHERM's example. Bill "convinced" Amanda to give him a hand-job -- he asked, and she agreed. She stayed in his room for hours, apparently listening to his boorish and pathetic entreaties. The most obvious problem with the example is that Amanda had a reasonable alternative to engaging in the sex act but chose not to exercise it: at any time she was free to say "no" and to get up and leave. Giving a horny college guy a hand-job because he wants it, or to shut him up, or because the woman wants to foster a relationship with him and sees that as a way to do it, is not sexual assault. Bill may be many things -- perhaps boorish, perhaps immature, and perhaps selfish -- but based on the limited information available to us in NCHERM's example, he is not a rapist and shouldn't be punished for some vague and amorphous sexual misconduct.
NCHERM's example accomplishes the seemingly impossible task of insulting both genders at the same time: it insults males by telling them they are akin to rapists even when they ask and get permission for sex before proceeding because they asked too much, and it insults females by suggesting they are not free moral agents capable of saying "yes" when they want sex, and "no" when they don't. This is the epitome of political correctness run amok.
Rape laws have never been, and should not now be, a clearinghouse to redress every less than ideal sexual encounter. Katie Roiphie once summed it up in a landmark New York Times piece: "With their expansive version of rape, rape-crisis feminists are inventing a kinder, gentler sexuality. Beneath the broad definition of rape, these feminists are endorsing their own Utopian vision of sexual relations: sex without struggle, sex without power, sex without persuasion, sex without pursuit. If verbal coercion constitutes rape, then the word rape itself expands to include any kind of sex a woman experiences as negative."
The only pertinent inquiry should be whether the woman manifested consent to engage in the sex act when she had a reasonable alternative not to. Once such consent is found, Big Brother/Sister should stay out of the bedroom. In the absence of improper threats, to try to undo her manifested consent by inquiring into her subjective motivations is unworkable, and flat-out wrong on a multitude of levels. In no rational world does nagging rise to the level of an improper threat or sexual misconduct.
Joanne Jacobs once wrote the following: "In the largest survey of campus date rape, 43 percent of women classified as rape victims had not realized they'd been raped." Was this because women were hesitant to label rape as a crime? "Hesitant to label rape a crime?" Ms. Jacobs scoffed. "No, they were hesitant to label having sex 'when you did not want it because you were overwhelmed by continual arguments and pressure' as rape, which is what happened to most of the 'victims.' They weren't raped; they were nagged."
Sarah Overstreet once wrote: "Our college students need the tools of personal power and responsibility, not a false definition of rape. So do we all. Lacking the skills or confidence to resist verbal coercion doesn't make it a crime."
Katie Roiphie perhaps said it best: "By viewing rape as encompassing more than the use or threat of physical violence to coerce someone into sex, rape-crisis feminists reinforce traditional views about the fragility of the female body and will. . . . The belief that 'verbal coercion' is rape pervades workshops, counseling sessions and student opinion pieces. The suggestion lurking beneath this definition of rape is that men are not just physically but also intellectually and emotionally more powerful than women.
"Imagine men sitting around in a circle talking about how she called him impotent and how she manipulated him into sex . . . . Imagine him calling this rape. Everyone feels the weight of emotional pressure at one time or another. The question is not whether people pressure each other but how our minds and our culture transform that pressure into full-blown assault. There would never be a rule or a law or even a pamphlet or peer counseling group for men who claimed to have been emotionally raped or verbally pressured into sex. And for the same reasons -- assumption of basic competence, free will and strength of character -- there should be no such rules or groups or pamphlets about women."
Roiphie's analogy is not so far-fetched. The fact is, studies show that men experience alleged sexual coercion almost as much as women. See here and here. Yet, it is not considered a significant problem for men. Nor should it be for women.
II. Sexual coercion policies are so vague they do not pass Constitutional muster
Our criminal law is not a guessing game. A valid criminal statute clearly puts the public on notice as to the conduct that is forbidden. "A penal statute, . . . to be valid, must be sufficiently definite to show what acts the legislature intended to punish." William Lawrence Clark et al, A Treatise on the Law of Crimes at 59 (1996). This is a component of due process. "The test is whether the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices." Jordan v. DeGeorge, 341 U.S. 223 (1951). A law that does not meet that standard is unconstitutionally vague.
Fundamental notions of fairness dictate that college rules of conduct also be sufficiently definite to warn the accused when he's in violation of them. College sex policies should not be free-floating standards of purported misconduct -- rape in the air -- that mean whatever some arbitrary disciplinary hearing panel say they mean.
The sexual coercion definitions referenced above do not pass Constitutional muster. "Seduction," whatever that means, is OK, but, apparently, too much "seduction" is bad because it can become "coercion," which even the purported experts have a difficult time defining. The guy can ask for sex, but he can't ask too much -- but how much is too much? -- because he can't cross some indistinct, blurry line as clear as a dense New England fog. When does asking become nagging? When does "seduction" magically turn into "coercion"? There is no mistaking midnight for noon, but at what point does twilight become night?
To say that the contours are fuzzy is an understatement. No one -- no one -- can be sure at what point the line is crossed. As a law, it is wholly unworkable. As a policy, it is insulting to both genders for the reasons explained above.
Denouement
We've tumbled down a rabbit hole so dark and deep it will be difficult to climb out. For decades we've preached that when a woman says "no," the man must stop. Now we are telling young men that when a woman says "yes," they are still rapists . . . if they nagged her too much? Come again? Is it any wonder that so few outside the feminist community think there is a campus rape crisis? And is it any wonder that young women are not reporting these "offenses"?
The last point is the only salvation. While colleges are reimagining "proper" male sexual conduct in an effort to construct a progressive, supposedly female-friendly, sexual utopia, why aren't many more men being punished for "coercion"? The reason "coercion" policies are not expelling college men in massive numbers is because college women, largely, aren't buying the notion that their male peers are predators, so they aren't reporting it. Heather MacDonald summed it up: "One group on campus isn’t buying the politics of the campus 'rape' movement, however: students. To the despair of rape industrialists everywhere, students have held on to the view that women usually have considerable power to determine whether a campus social event ends with intercourse."
Still, though, the policies are in place to allow a given woman to use the power of a college tribunal to punish in a grossly unfair manner a given man for being nothing more than a sexual nagger. Indeed, too many men have been hauled before disciplinary boards on such charges.
At their heart, these campus policies are premised on a moral elitism that seeks to smack down what their purveyors regard as undeserved male privilege. They are making a statement that male conduct must be changed to make campuses less burdensome for the oppressed gender.
Remember what we said at the outset: It is no stretch to assert that American colleges prefer to punish, by suspension or expulsion, a male student who successfully nagged a woman into agreeing to have sex with him, rather than put the women through the bother of just saying "no" if she really didn't want to do it. That is a policy bordering on pathology.
The real question is, why in the hell are parents tolerating it?
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