Anyone who follows FIRE’s work has seen the way colleges and universities frequently use overbroad and vague policies against “harassment,” “threats,” and “obscenity” to punish speech that comes nowhere close to the legal definition of these terms. Sometimes the policies that prohibit constitutionally protected expression are easy to find, but sometimes they’re tucked away—for example, in a sexual misconduct policy under the heading “coercion.” Intended to cover obtaining sex by less obvious forms of threats or non-physical force, coercion policies sometimes prohibit expression just because a would-be partner likely wouldn’t want to hear it.
Earlier this month, University of California, Los Angeles School of Law professor Eugene Volokh called out Clark University for such a policy, now removed from its website. According to the former policy, sexual assault includes coerced sexual contact, and coercion includes statements like the following: “If you love me you would have sex with me.” “If you don’t have sex with me I will find someone who will.” “I’m not sure I can be with someone who doesn’t want to have sex with me.”
So if a student simply does not want to be in a sexless relationship, how exactly is that student supposed to communicate his or her feelings under this policy?
It looks like that question will remain unanswered by Clark, at least. Volokh reported that in addition to taking this explanation of sexual coercion offline, Clark stated that it was “not current Clark policy.” But a quick search reveals that other schools maintain similar provisions on sexual coercion.
Youngstown State University (YSU), a public institution in Ohio, advises its students that coerced sex is not consensual, and that the following statements, among others, could be coercion: “If you LOVE me, you’ll have sex with me.” “You know you want it.” “You’re a tease.” These statements might be obnoxious, but they are not threats. They come with no explicit or implicit consequences other than the speaker being upset or sexually frustrated. And where the only result is hurt feelings, it cannot be said that someone is being forced into having sex.
YSU’s page on consent comes with a video by CampusClarity, which provides campus training and surveys relating to sexual assault, and which earned some publicity a few years ago for prompting universities to require students to reveal the details of their sex lives. The video attempts to clarify the issue of coercion through an analogy to a woman trying to obtain people’s cell phones, taking one from a sleeping person and shoving another woman to get her to hand the phone over. But of course, none of the vignettes involve anyone handing over their phone after the woman says, “If you LOVE me, you’ll let me borrow your phone.” Perhaps that’s because the analogy would demonstrate all too well that the policy doesn’t make sense as applied to protected expression, rather than theft or physically threatening acts.
YSU isn’t alone. Emory University’s policy on consent and coercion similarly lists “coercive statements,” including: “If you really loved me, you would have sex with me.” “If you won’t have sex with me, I’ll find someone who will.” “I didn’t realize you were such a prude.” A layperson might characterize the second statement as a “threat” to leave the relationship. But a “true threat” under the law—a type of expression unprotected by the First Amendment—conveys “an intent to commit an act of unlawful violence.” Here, the threatened action consists only of something the speaker has a right to do regardless of other factors: choose a different partner. It’s not within a public institution’s legal authority to effectively forbid potential sexual partners from making their feelings and (legal) intentions clear before continuing with a relationship.
Emory states on its website that its policy was adapted from the University of Michigan’s. UM’s website, in turn, contains similar language, but states somewhat unhelpfully: “This article has been archived. It is still available for reference purposes, but may contain out of date information.”
Each of these three schools has provisions of their policies that appropriately target threats of violence or blackmail and use of drugs as unacceptable means of obtaining sex. Those prohibitions have legal bases and articulable boundaries. Accordingly, they don’t pose the same risk to protected expression and due process as policies that treat as threats any statement that might have a persuasive or negative emotional effect on a person.
Students will be best served if universities make a trend of rescinding these overly broad policies rather than implementing them. Young people are already receiving enough confusing messages about what consent means without being told that being frank about their priorities will render any subsequent sexual activity nonconsensual. Universities should maintain policies designed to ensure their students are safe. Beyond that, though, they cannot dictate the details of conversations leading to sexual activity when each party involved is capable of deciding for themselves whether to have sex.